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
(HIS HONOUR JUDGE PETER CLARK)

		Royal Courts of Justice Strand London, WC2 Tuesday, 15th October 2002

Tuesday, 15th October 2002

1. LORD JUSTICE PETER GIBSON: Mr Shittu applies for permission to appeal out of time from the order made on 14th June 2002 by His Honour Judge Peter Clark sitting alone in the EAT, whereby he dismissed Mr Shittu's appeal from the decision of the Registrar of the EAT. The Registrar on 20th November 2001 thereby refused an application for an extension of time in which to present a notice of appeal from a decision of an Employment Tribunal sitting at Manchester. That decision was sent to the parties on 20th October 1999. Mr Shittu is out of time because he had 14 days from the date the judgment was sent to him -- that was 24th July -- in which to lodge his Appellant's Notice. He did not do so until 10th September. He says that he had matrimonial problems which caused him to be away from home for a couple of weeks. That does not explain the full period of the delay. However, it is this court's practice on such applications to consider the merits of his proposed appeal before deciding whether or not it will grant permission to appeal. I will therefore consider those merits.
2. Mr Shittu was employed as a quantity surveyor by Manchester City Council from May 1990 to 31st October 1998, the effective date of his resignation. He brought two sets of proceedings alleging race discrimination against the Council and certain employees. The proceedings were brought while he was still employed. They were dismissed by the Tribunal. An appeal to the EAT was dismissed on 29th July 1999 and permission to appeal to this court was refused on 3rd May 2000. On 25th January 1999 he presented a third originating application. He alleged unfair dismissal. He claimed that he was constructively dismissed. He also claimed harassment and victimisation. The proceedings were brought against the Council and three of its employees who are officials of the Council. Although Mr Shittu does not expressly refer to discrimination, references to harassment and victimisation -- particularly when he alleges that because he did not withdraw his race discrimination proceedings he was victimised -- naturally connote a complaint under the Race Relations Act 1976, direct discrimination being the harassment claim under section 1 and victimisation under section 2. The Council opposed his complaint. One of the points taken was that he was estopped, by reason of the decisions in the earlier proceedings, from bringing a third Originating Application. The Council proposed that there be a preliminary issue.
3. In Box 3 of his Originating Application of 25th January 1999 Mr Shittu gave the name and address of Wale Olabode as the representative acting for him. The Tribunal sent correspondence to Mr Olabode, in particular by letter dated 17th March 1999, and he, like the Council, was informed that the current proceedings were to be held in abeyance pending the outcome of the appeal in the first proceedings. When the Tribunal learned of the EAT decision of 29th July 1999 notice of hearing was sent on 16th August 1999. The hearing was to be a combined directions and preliminary issue hearing, and that was fixed for 7th October. That notice, as I say, was sent to the parties' representatives. No letters sent to Mr Olabode were returned by the Post Office.
4. The hearing on 7th October 1999 was attended by the Council but not by Mr Shittu nor any representative for him. The Tribunal decided to proceed. It reached two decisions: (1) Mr Shittu's claim for race discrimination consisting of harassment and victimisation was struck out as frivolous under rule 13(2)(d) of the Employment Tribunals Regulations 1993, the Council's argument based on issue estoppel succeeding;

(2) the racial discrimination claim was also dismissed under Rule 9(3), as was the unfair dismissal claim.

5. Mr Shittu says that he was unaware until May 2000 of what the Tribunal had decided by the decision sent out on 20th October 1999. When he heard he applied to the Tribunal on 18th May 2000 asking for a review. There was a review hearing which he attended on 9th January 2001. At that hearing he revealed that Mr Olabode no longer acted for him. The Tribunal's decision was sent to the parties on 19th July 2000. The decision was that the earlier decision striking out the discrimination claim was rescinded because the Tribunal accepted that there had been a procedural mishap. That was because Mr Shittu had not been given a warning, as was required by Rule 13(3), that his claim might be struck out. However, the second decision, to which I have referred, dismissing the race discrimination and unfair dismissal claims, was confirmed. The Tribunal held that no procedural mishap had occurred in relation to the second decision because Mr Shittu, through his representative, had been sent and received proper notice of the hearing on 7th October 1999. Mr Shittu's third originating application was therefore dismissed.
6. By letter dated 24th August 2001 received on 28th August, Mr Shittu lodged a notice of appeal against the decision of 20th October 1999. Under rule 3(2) of the Employment Appeal Tribunal Rules 1993 it is the appellant's responsibility to submit an appeal within 42 days from the time when the Extended Reasons were sent to him. Mr Shittu was over 600 days late. This was considered by the Registrar, who invited the parties to make submissions on the fact that Mr Shittu was so out of time.
7. From the Registrar's recitals to the Order of 10 November 2001 it is apparent that she considered what was sent to her by Mr Shittu as well as a letter from the Council. The Registrar in her order of 20th November 2001 recites a number of facts, including some of those to which I have adverted, and continued:

"AND UPON CONSIDERATION of the fact that the Applicant was not prevented from appealing merely by reason of having sought a review

AND UPON CONSIDERATION of the fact that the Appellant has made no effort to deal with the matter at any stage whilst he claimed that he was abroad

AND UPON CONSIDERATION of the fact that the appellant is legally experienced and well aware of the importance of time limits and that these will be relaxed only in rare and exceptional cases where the EAT is satisfied that there is a full, honest and acceptable explanation of the reasons for the delay (AZIZ v BETHNAL GREEN CITY CHALLENGE COMPANY LTD)

AND UPON FURTHER CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1)MR ABDELGHAFAR (2)DR A K ABBAS with special attention paid to 71(c): `there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits.'

IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993.

AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused."

8. Mr Shittu then appealed to the EAT.
9. Judge Clark in refusing Mr Shittu's appeal from the Registrar's order said that Mr Shittu having learned in May 2000 of the Order of October 1999, it was incumbent on him to take immediate steps to appeal, even though out of time. Instead, Mr Shittu had delayed until he knew the outcome of the review application. The judge referred to what was said by Mummery J in Abdelghafar [1995] ICR 65, and in particular that explanations for delay which would not be regarded as a good excuse included the fact that an application for a review was pending. Accordingly, the judge dismissed the appeal against the Registrar's order. He pointed out that that appeal was to some extent academic in the light of the conclusion to which he, sitting with two lay members of the EAT, had come on a second appeal, an appeal from the review decision of 19th July 2001. The view of the EAT was that it was arguable that a procedural mishap had occurred in relation to the dismissal orders under Rule 9(3). Accordingly the EAT allowed that appeal to go to a full hearing.
10. Despite that decision favourable to Mr Shittu, he seeks to pursue to this court the appeal from the Registrar's decision. He appears before me today. He has put before me a good deal of material with copious references to authorities, many dealing with matters far removed from the present. But I fear that little of it is relevant to the only issue which fell for the consideration of the Registrar and of the judge on the appeal from the Registrar's decision and which now falls for me to consider today. The Registrar had to consider whether Mr Shittu's appeal was out of time -- plainly it was -- and, if so, whether to grant an extension of time in the circumstances. Mr Shittu's primary argument appears to be that there was a procedural mishap in relation to the Tribunal's decision reached on 20th October 1999, rendering it invalid, and the Registrar and the judge should have taken that into account when considering whether time should be extended. The errors in procedure recognised in the review decision do not affect the fact that he is seeking to appeal long out of time, and in my judgment he has misconceived what was the scope of the applications to the Registrar, the appeal to the judge and now the application to this court.
11. Mr Shittu says that on the authorities the appropriate course was to wait for the outcome of the review hearing before appealing the decision on 20th October 1999. I do not agree. The guidance given in Abdelghafar included (at page 72) that where there is an application for an extension of time the merits of the appeal usually are of little weight. Mummery J said that the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension of time are:

(a) What is the explanation for the default?

(b) Does it provide a good excuse for the default?

(c) Are there circumstances for the Tribunal taking the exceptional step of granting an extension of time?

12. That guidance was approved by this court in the Aziz case [2000] IRLR 111. It is clear that, save in exceptional circumstances, if a party wishes to appeal he must do so within the period of 42 days allowed by the 1993 Rules, whether or not he has applied for a review which has yet to be determined. Nor does the fact that he has appealed in some earlier proceedings lead to the conclusion that a delay in appealing a subsequent decision is justified. The rules are perfectly plain. I do not doubt that some objections to a decision of a tribunal are better dealt with by an application for a review than by an appeal. An applicant for a review of a decision is not obliged to appeal that decision. But if he does choose to appeal, as well as to apply for a review, he cannot flout the prescribed time limits for an appeal. That is what Mr Shittu has done. Let me assume without deciding that the representative whom he nominated failed, as he claims, to pass on to Mr Shittu the letters which the representative received. That would be some, although not a complete, excuse for Mr Shittu. It was up to him to choose whether to be represented and by whom and to notify the Tribunal if the representative ceased to act. Nevertheless, Mr Shittu knew in May 2000 that the Tribunal on 20th October 1999 had reached a decision in his absence adverse to him, and yet it was nearly 16 months later before he sought to appeal. In industrial relation cases compliance with time limits has always been considered important and the generous 42-day time limit is very rarely relaxed. In my judgment in the circumstances it is impossible to see any reason why this court would wish to interfere with the decision of the judge upholding the Registrar's exercise of discretion in the face of such gross delay.
13. I have not been able to ascertain from Mr Shittu in his oral address to me this morning any substantial ground on which he would have any real prospect of success on an appeal. He consistently confused the appeal with the review. Seeing, as I do, no real prospect of success on an appeal and there being no other compelling reason why this appeal should be allowed to go ahead, I must dismiss this application.
Order: Application dismissed.