England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay - President)

		Royal Courts of Justice Strand London WC2 Thursday, 6th December 2001

Thursday, 6th December 2001

1. LORD JUSTICE PETER GIBSON: Maurice Logan-Salton applies for permission to appeal out of time from the order made on 26th June 2001 by the President of the EAT, Mr Justice Lindsay, dismissing Mr Logan-Salton's appeal from the order of the Registrar of the EAT. The Registrar on 9th May 2000 refused to grant an extension of time for lodging a notice of appeal from the order of an Employment Tribunal on 24th June 1999 striking out Mr Logan-Salton's Originating Application. Mr Logan-Salton had 14 days from 27th September 2001, the date when the judge's judgment was sent to him, in which to lodge his Appellant's Notice. He did so on 16th October so that he is five days out of time. Whilst the delay is not great, it is surprising given the reason for the Registrar's order.
2. Mr Logan-Salton was a Social Care Assessor employed by Calderdale Metropolitan Borough Council ("Calderdale"). He was suspended on 6th June 1996 after Calderdale was alerted to allegations against him made by the Child Protection Custodian of Durham Council. Disciplinary proceedings were commenced against him. A disciplinary hearing was held on 5th December 1997. He was not present because of illness. Nor did he have any representative who was present at that hearing. On 10th December 1997 he was dismissed for gross misconduct. At that time criminal proceedings against him in the Crown Court were pending. On 3rd March 1998 he presented his Originating Application to the Tribunal alleging unfair dismissal. His complaint was that Calderdale had failed to follow its own disciplinary procedures. After amending his Originating Application the only relief he sought was reinstatement. In his IT1 he gave the name and address of the solicitors acting for him, Shirtcliffe & Co ("Shirtcliffes"), as well as a Newcastle address for himself. The hearing of his complaint had to be adjourned from time to time because of Mr Logan-Salton's illness and also because of the criminal proceedings pending against him.
3. On 6th October 1998 he pleaded guilty to detaining a child without lawful authority. He was given a suspended sentence of two months' imprisonment. On 8th April 1999 Mr Logan-Salton applied for another adjournment of the Tribunal hearing on medical grounds. An adjournment was granted but a medical certificate was requested by the Chairman "as soon as possible", as was stated in a letter dated 9th April 1999 sent to Mr Logan-Salton's Newcastle address, as well as being copied to Shirtcliffes. But no medical certificate was sent. Nor was any answer received by the Tribunal. On 29th and 30th April 1999 and on 11th May 1999 the Tribunal wrote again to Mr Logan-Salton, this time to a Halifax address of his to which he referred in a letter to the Tribunal dated 12th March 2001 as his "Halifax home". Copies were also sent to Shirtcliffes. Each time the copies of the previous correspondence were sent. But still no medical certificate or reply was received by the Tribunal. On 9th June 1999 Shirtcliffes wrote to the Tribunal to say that they no longer acted for Mr Logan-Salton. On 14th June the Tribunal wrote again to Mr Logan-Salton at the Halifax address. In that letter he was given a warning that his Originating Application would be struck out for want of prosecution unless written reasons were given, within seven days, as to why there should be no striking out.
4. On 24th June 1999 his Originating Application was struck out under rule 13(2)(f) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993, the Tribunal having had no response to any of the letters. The order was sent to the parties, including to Mr Logan-Salton at his Halifax address. Any appeal from the order should have been filed within 42 days - that is to say by 5th August 1999 - but it was not. In the meantime Mr Logan-Salton had been charged with indecent assault on a male. He pleaded not guilty but was found guilty and sentenced to a term of imprisonment of three years and 11 months on 18th June 1999. He was released on 2nd December 1999. Mr Logan-Salton says that he received the letter of 14th June only in August 1999 while he was in prison. He had had solicitors, John Brennan & Co ("Brennans"), for the criminal proceedings. On 22nd August 1999 he wrote to Brennans, referring to having just received the letter of 14th June and asking them to set aside the decision made in his absence. On 6th September Brennans wrote to the Tribunal asking for his Originating Application to be reinstated.
5. On 9th September the Tribunal sent Brennans a copy of the order of 24th June. The solicitors forwarded that order to Mr Logan-Salton in prison, but only on 3rd November. But no notice of appeal was lodged by Brennans, nor by McKeag & Co ("McKeags") (another firm of solicitors to whom Mr Logan-Salton appears to have turned in January 2,000); and it was only on 5th April 2000, 286 days out of time and over five months after Mr Logan-Salton was released from prison, that a notice of appeal was lodged with the EAT.
6. The Registrar then refused to extend time. Her order recites her consideration of the letters from Mr Logan-Salton to the EAT, as well as a letter from Brennans in which they accepted that fault for the delay from 22nd August 1999 was theirs. I think they can only have accepted responsibility during the time they were instructed; and, as I have said, another firm was instructed in January 2000. The Registrar also referred to paragraph 3 of the EAT Practice Direction in which reference was made to United Arab Emirates v Abdelghafar [1995] ICR 65. In that case Mummery J giving the judgment of the EAT said that the EAT, when faced with an application for an extension of time for lodging a notice of appeal, should ask for an explanation for the default and consider whether the explanation provided a good excuse for the default and whether there were circumstances justifying the EAT taking the exceptional step of granting an extension. It was noted in that case that the oversight of a solicitor had not been held to be a good excuse for not complying with the time limit. That was a reference to Duke v Prospect Training Ltd [1988] ICR 521 where, through an oversight by the applicant's solicitors, a notice of appeal had not been lodged and the applicant was out of time by one day. Nevertheless the EAT held that that applicant was too late. The guidance that was given in Abdelghafar has been approved by this court in Aziz v Bethnal Green [2000] IRLR 111 where it was specifically accepted that in employment cases a strict approach to time limits is appropriate, stricter indeed than in other civil cases. The Registrar accordingly refused Mr Logan-Salton's application.
7. He then appealed and his appeal came before Mr Justice Lindsay on 11th January 2001. The judge adjourned the hearing for further evidence on whether Calderdale had suffered prejudice through the passage of time, on matters going to the striking out by the Tribunal for want of prosecution, and also on whether the order of 24th June 1999, when sent to Mr Logan-Salton, was accompanied by any guidance from the Tribunal. Calderdale put in evidence referring to evidential difficulties which it now encountered as a result of the passage of time, including the retirement of what it called a principal witness. Mr Logan-Salton also put in evidence challenging Calderdale's evidence. He referred to a letter from the Tribunal that no information was sent with an order striking out an originating application. That letter referred to a letter which had been received from Mr Logan-Salton. I have not been supplied with a copy of that letter, but I shall assume that Mr Logan-Salton, when the order was sent to him, was not informed that he had 42 days in which to appeal.
8. At the adjourned hearing of the appeal Mr Logan-Salton appeared in person. The judge dismissed his appeal for three reasons:

(1) the delay was inadequately explained;

(2) there was prejudice to Calderdale as a result of the delay; and

(3) reinstatement was the only remedy sought; and even if it be assumed that Calderdale were wrong to have proceeded with the disciplinary hearing in Mr Logan-Salton's absence so that he would succeed on that point, he would nevertheless not be able to obtain the relief of reinstatement in view of what had occurred, and it would be disproportionate to allow the appeal to go ahead on that basis.

9. Mr Logan-Salton wrote to the EAT on 8th and 25th August 2001 seeking a review of the judge's decision. But that was rejected as being outside the limit, provided by the EAT Rules, of 14 days from the date of the order.
10. Mr Logan-Salton appears before me in person today. He has addressed me with courtesy, clarity and moderation. He has advanced in his grounds of appeal and in his skeleton argument in support a number of points on which he seeks permission to appeal, and he has added to his written submissions oral arguments today. I will go through them briefly.
11. First, Mr Logan-Salton says that the judge wrongly thought that Mr Logan-Salton was represented by Shirtcliffes until 9th June 1899, whereas they had ceased to act for him on 9th April 1999. But what that overlooks is that, until the Tribunal was notified of that fact by Mr Logan-Salton or by the solicitors (and it was not notified until the solicitors' letter of 9th June 1999), the Tribunal was entitled to treat the solicitors as on the record and as being persons on whom service of documents could properly be effected. There is nothing in this point.
12. Second, Mr Logan-Salton questions why the Tribunal, having written to him at his Newcastle address on 9th April 1999 a letter which he accepts he did receive, reverted to sending letters to his Halifax address. That leaves out of account the fact that in the letter which he did receive he was asked to supply a doctor's note as soon as possible. But no such note was ever received. The Tribunal can hardly be blamed for trying to contact him at his Halifax home in addition to sending letters to the solicitors on the record. What is surprising is that Mr Logan-Salton gives no explanation of why he failed to make arrangements for any post to be forwarded to him from his Halifax home for many weeks whilst he was at the Newcastle address, which was only accommodation shared with an elderly relative. The judge was entitled to take account of that.
13. Third, Mr Logan-Salton criticises the judge for not referring to the fact that a doctor's certificate dated 28th April 1999, which he said would have satisfied the Tribunal's requirement, was in existence at the relevant time. That is a doctor's note detailing Mr Logan-Salton's medical ailments for the previous three years, but saying that he should be fit for a four-day tribunal hearing from the middle of May onwards unless he had any further deterioration. Thus the certificate might have justified a very short adjournment, but not one beyond mid May. Further Mr Logan-Salton accepts that he wrongly assumed that the certificate had been sent, whereas in fact, because he had failed to pay the doctor's fee, it was never sent. Mr Logan-Salton has only himself to blame for not making sure that the certificate, which he knew from the letter of 9th April was required as soon as possible, reached the Tribunal.
14. Fourth, Mr Logan-Salton criticises the judge for saying that if the letter of 14th June 1999 was forwarded to him in prison it is hard to see why the order of 24th June should not also have been forwarded not later than August 1999. Mr Logan-Salton now says, though I do not think that this was before the judge, that some letters were forwarded to him by a relative who visited his Halifax home. To my mind all this is beside the point. Once he had the letter of 14th June Mr Logan-Salton knew, even without the order, that an order would have been made seven days later. The real question is whether the delay from 22nd August 1999 to 5th April 2000 is adequately explained. That is the point addressed by Mr Logan-Salton in his fifth ground of appeal.
15. Fifth, Mr Logan-Salton asserts that neither Brennans or McKeags, nor he himself, knew that the EAT had a role when the Originating Application had been struck out. Mr Logan-Salton is not unfamiliar with the EAT (see the EAT's decision Logan-Salton v Durham County Council [1989] IRLR 99). That the solicitors were unaware that the EAT had a role does not appear from the letters which have been put before me, even though in those letters they acknowledge that they were responsible for at least some of the delay. But the very fact that Mr Logan-Salton changed solicitors so frequently indicates that he was not taking a passive role and leaving matters to his solicitors. The fact that the solicitors may also be to blame does not entirely excuse Mr Logan-Salton in the delay. I repeat that delay in employment cases is treated more seriously than delay in other civil litigation.
16. Sixth, Mr Logan-Salton then refers to the Abdelghafar case and to an observation of Mummery J that when parties are notified of a tribunal's decision they are informed of the 42-day time limit. Mr Logan-Salton claims that he did not know of that limit because of the letter from the Tribunal to which I have already referred that no information was sent with an order striking out an application. He accuses Mr Justice Lindsay of overlooking that. That is hardly likely, given that the judge himself had directed the inquiry on the point. No doubt the judge had in mind Mr Logan-Salton's previous experience of the EAT, and it would be very surprising if Mr Logan-Salton really thought that there was no time limit for an appeal and no way of challenging before the EAT a decision of a tribunal striking out an Originating Application. Ignorance of the law is never a complete excuse, particularly when the applicant has had legal representation. I have already noted what was said in Abdelghafar about oversight by solicitors. The judge, in any event, had to conduct a balancing exercise. He had to take into account matters such as the acknowledgement by the solicitors of their responsibility for delay; but he also had to take into account the position of Calderdale. Calderdale had not caused the delay. If the solicitors were negligent in failing to act more promptly, as Mr Logan-Salton says, then it may be that a remedy lies against them. But that is not a matter which should redound against Calderdale. Calderdale should not be prejudiced because of the delay and the judge was fully entitled to take that into account.
17. Mr Logan Salton's seventh ground is an attack on the judge's views on proportionality. The judge under this head assumed that Calderdale was wrong to have gone ahead with the disciplinary hearing in December 1997 in Mr Logan-Salton's absence. But the judge said that, in the light of the conduct by Mr Logan-Salton which his two convictions made plain, he would inevitably have been dismissed, and that even if his Originating Application succeeded on the procedural grounds on which he challenged the decision, he would not have achieved the only relief which he sought, that is to say reinstatement. Despite Mr Logan-Salton's objections to the judge's reasoning, despite his attempts to criticise Calderdale's behaviour, despite his drawing attention to his medical condition and despite his efforts to explain away why he pleaded guilty to the first criminal trial charge brought against him, and despite his telling me that he is attempting to appeal out of time the conviction under the second charge, in my judgment, the logic of the judge's reasoning is irrefutable.
18. I have to say that I can see no real prospect of success on any of the grounds of appeal, nor any other compelling reason why this appeal should go ahead. The judge also dismissed an appeal by Mr Logan-Salton from the Registrar's refusal to make an order for the disclosure by Calderdale of documents. Mr Logan-Salton has repeated his argument on that point to me. But again it seems to me, in agreement with the judge, that that application must also fall with the failure of his application for permission to appeal. Those documents should have been sought a long time ago from the Tribunal. The fact that he sought them from Calderdale does not excuse the fact that he could have asked the Tribunal to assist him but he did not.
19. For these reasons, therefore, I am afraid I must dismiss this application.
Order: Application dismissed.