England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 25th September 2002

1. LORD JUSTICE KEENE: Mr N'Dow seeks permission to appeal against the decision of the Employment Appeal Tribunal dated 2nd July 2002, a decision made by His Honour Judge Peter Clarke sitting alone. Mr N'Dow had brought claims before an Employment Tribunal against his former employer, Homebase Ltd. In due course unfair dismissal was conceded by the employer and, in the end, Mr N'Dow was awarded a total of £7,458.01 by way of compensation for this and also in respect of unlawful deductions from his wages. That decision was promulgated on 23rd October 2001.
2. However, Mr N'Dow was not satisfied with that decision and he applied for a review of it. That application for a review was dismissed by the chairman in a decision with extended reasons dated 28th November 2001. On 18th March 2002 the applicant lodged notices of appeal with the Employment Appeal Tribunal against both those decisions. He was well out of time in doing so. Under the Employment Appeal Tribunal Rules 1993, Rule 3 (2), a period of 42 days from the date of the extended reasons is allowed for instituting an appeal from an Employment Tribunal. That is indicated on the documents sent with the decisions of the Employment Tribunal. An extension of time was refused by the Employment Appeal Tribunal registrar.
3. Mr N'Dow appealed to the judge. The judge, as his judgment indicates, applied the well established principles for the exercise of his discretion under the Employment Appeal Tribunal Rules for granting an extension of time. Those principles were set out by Mr Justice Mummery (as he then was) in United Arab Emirates v Abdul Ghaffar [1995] ICR 65, 71-72 and approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. It is unnecessary to set out those principles in detail in this short judgment. They are referred to by His Honour Judge Peter Clarke in his judgment. Suffice it to say they require an applicant to show a full, honest and acceptable explanation for the delay and they established that the time limit will be relaxed in only rare and exceptional cases. Mr N'Dow had been informed on receipt of the extended reasons that he had 42 days in which to appeal. The reason advanced before the Employment Appeal Tribunal for the delay was that Mr N'Dow had - on the advice, he said, of a clerk at Brentford County Court - pursued a claim in that court for damages against his employer. The judge did not regard that as being any excuse for failing to lodge an appeal with the Employment Appeal Tribunal in the required time.
4. Today Mr N'Dow, who has represented himself in a very capable fashion, has argued that this is a rare and exceptional case. He emphasises that he was misdirected by the clerk at the County Court. He says that he is a layman in these matters and therefore was not aware that he was taking the wrong proceedings when he began an action in the County Court. I have asked him during argument whether he took any advice from a solicitor about a possible appeal against the Employment Tribunal's decision. Mr N'Dow's response to me was that he took the view it would be too expensive to take a solicitor's advice. He therefore asks the court to exercise discretion in his favour in the interests of justice.
5. I have to bear in mind that on a matter such as this Judge Peter Clarke was exercising a discretion in deciding whether or not to extend time. Of course, this court will only interfere with such an exercise of discretion if it is clear that the decision is plainly wrong or there is some other manifest defect in law in the exercise of that discretion.
6. I cannot see that Judge Peter Clarke did go wrong in the exercise of his discretion. Certainly he did not, in my judgment, err in any way which would entitle this court to interfere. In effect, Mr N'Dow knew of the 42-day time limit, which by many standards is a generous period of time. Though he was aware he was a layman in these matters he chose not to seek legal advice on the basis of cost, despite the fact he had been awarded nearly £7,500. On that basis he decided not merely to take proceedings in the County Court but also to refrain from lodging a notice of appeal in the Employment Appeal Tribunal. In short, he chose not to lodge a notice of appeal when he could have done and he chose not to take the advice of a solicitor on this matter. If he was dissatisfied with the Employment Tribunal's decisions, clearly it would have been a sensible course of action to have lodged a notice of appeal with the Employment Appeal Tribunal even if he had decided to take proceedings in the County Court. Moreover, I cannot see that failing to take legal advice in the circumstances which I have described amounts even to a reasonable explanation for the failure to lodge a notice of appeal within 42 days to the Employment Appeal Tribunal. Certainly, I can see nothing rare or exceptional about this case. There is nothing here that would bring it within the established principles justifying a relaxation of the normal time limit for appeals in the Employment Appeal Tribunal.
7. In my judgment, there is no prospect at all of persuading the Court of Appeal that Judge Peter Clarke's exercise of discretion was clearly wrong. In those circumstances I am bound to refuse this application for permission to appeal. The application is therefore dismissed.
Order: Application dismissed