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 A Wilkie QC)

		Royal Courts of Justice Strand London WC2 Thursday, 25th April 2002

Thursday, 25th April 2002

1. LORD JUSTICE PETER GIBSON: This is an application by Toyin Sojirin for permission to appeal from the order made by the EAT on 15th January 2002 refusing an extension of time to appeal against the refusal by an Employment Tribunal Chairman as long ago as 29th May 1997 of an application for a review. The review sought was of a decision of the Employment Tribunal of 4th July 1996, dismissing Mr Sojirin's complaint that he had been unfairly dismissed by his employer, National Car Parks Ltd. That dismissal took place on 30th October 1995.
2. On 17th January 1996 he commenced proceedings before the Employment Tribunal. Solicitors, Bhardwaj & Co, were then acting for him. The case was set down for hearing on 18th June 1996. But on 16th May 1996 the solicitors wrote to Mr Sojirin at his London address saying that the hearing had been adjourned and that they were sending him a copy of the notice which they had received from the Employment Tribunal. I do not know exactly what the notice said, but one would expect that it would state the date of the adjourned hearing. The solicitors asked Mr Sojirin to place them in funds if he wanted the solicitors to assist him. Otherwise he was asked to put himself on the record with the Tribunal and to deal with the matter as appropriate. Mr Sojirin does not recall receiving the letter.
3. On 29th May 1996 a notice of hearing appears to have been sent to Bhardwaj & Co. The hearing was to take place on 4th July 1996. On 4th July 1996 neither Mr Sojirin nor his solicitors attended. The case proceeded at 10.30 in their absence. The Employment Tribunal in their Extended Reasons say that Mr Sojirin was telephoned at the number which he had given in his IT1, as also were the solicitors telephoned, but there was no reply. The Tribunal in their decision promulgated on 29th July 1996 said that the employer acted reasonably and that the dismissal was fair.
4. Mr Sojirin complains that he never received notice of the hearing. On 1st October 1996 he wrote to the Tribunal office saying that he wanted to represent himself and he asked for all communications, including the date of the hearing, to be directed to his address. But by then, of course, the hearing had taken place, as he was informed by letter dated 23rd October 1996. With that letter from the Employment Tribunal were sent the notes on tribunal decisions which tell parties what they are to do if they are dissatisfied with the Tribunal's decision. Mr Sojirin says that he did not see those documents until about 15th January 1997 because he was from 21st October 1997 visiting his sick mother in Nigeria and was also ill himself. On his return he wrote to the Tribunal a letter in which he expressed surprise at the letter of 23rd October 1996. He asked for a retrial and to be notified if that was not possible so that he could seek judicial review.
5. On 3rd April 1997 Mr Sojirin by a letter which has not survived asked the Tribunal to review its decision. The Tribunal Chairman dealt with the application pursuant to Rule 11(5) of the Employment Tribunal Regulations 1993. By a decision promulgated on 29th May 1997 the Chairman refused the review on the ground that it had no reasonable prospects of success, and noted that the application for a review was well out of time.
6. In the meantime, on 6th May 1997, also long out of time, Mr Sojirin sought to appeal against the Tribunal's decision of 29th July 1996. The basis of that appeal was that neither Mr Sojirin's legal representatives nor Mr Sojirin was informed of the date of the hearing, and that the Tribunal was in breach of natural justice in hearing the case in his absence without informing him. On 12th May 1997 the EAT wrote to Mr Sojirin pointing out that he was 241 days outside the 42-day time limit and that he should apply for an extension of time. On 13th May 1997 Mr Sojirin wrote to the EAT applying for such extension to enable him to appeal. The employer wrote to the EAT, as was its right, on 24th May objecting to an extension. Mr Sojirin on 30th May wrote a further letter to the EAT in response. On 2nd June 1997 the EAT Registrar refused the application for an extension of time.
7. Mr Sojirin should have appealed against the Chairman's refusal of a review. Instead he commenced judicial review proceedings in the High Court on 28th August 1997. There were delays before his application came into court. His application was dismissed by Jackson J on 2nd July 1999 who, in refusing him leave, told him that it was still open to him to seek permission to appeal out of time from the Tribunal's refusal of a review and to appeal the Registrar's decision. But Mr Sojirin did not take that advice. Instead he sought to appeal to the Court of Appeal. That application came before this court on 21st February 2000 and was dismissed.
8. In the meantime, Mr Sojirin on 9th July 1999 wrote to the EAT seeking to appeal against the Registrar's decision. The Registrar on 26th August 1999 treated the letter as an application for an extension of time in which to appeal from the Registrar's order of 2nd June 1997. The Registrar refused that application.
9. On 25th August 1999 by a Notice of Appeal Mr Sojirin purported to appeal from the Tribunal's decision of 4th July 1996. On 10th September 1999 the EAT by letter pointed out that the notice of appeal was 1081 days outside the 42-day time limit and that he needed to apply for an extension of time. On 13th September 1999 he wrote to the EAT applying for such extension. Although this court had told Mr Sojirin that his proper course was to seek to appeal the decision of the Tribunal Chairman of 29th May 1997, Mr Sojirin did not heed that advice. There was a preliminary hearing before the EAT on 12th June 2000. The EAT, in a judgment sent to the parties on 27th June, gave leave to Mr Sojirin to amend his Notice of Appeal to include an appeal from the Chairman's decision of 29th May 1997, and it directed that the question whether time should be extended should be taken at the outset of the hearing before the EAT and, if resolved in Mr Sojirin's favour, the main hearing of the appeal should follow.
10. On 26th June Mr Sojirin amended his Notice of appeal to add an appeal against the Chairman's decision of 29th May 1997. The amended Notice of Appeal was received by the EAT on 10th July 2000, three years out of time.
11. The question of the extension of time came before the EAT on 13th November 2001. His Honour Judge Wilkie QC, giving the judgment of the EAT on 15th January 2002, refused to extend time for launching an appeal against the Tribunal's decision of 4th July 1996, the Chairman's decision of the 29th May 1997 and the Registrar's decision of 2nd June 1997. The judge said this in paragraph 19 of the judgment:

"No realistic appeal lies against the decision of the Tribunal dated 4 July 1996 nor the Registrar. Both are long out of time and we refuse leave. It is plain that at the time the decision of 29 May was being taken Mr Sojirin was well versed in the availability of an appeal against a decision of an Industrial Tribunal together with the fact that time limits were involved and that applications for extensions of time might be necessary. It is clear that, from very shortly after the decision of the chairman and the refusal of the registrar to grant him extension of time for an appeal against the decision of 4 July, he was determined to seek his remedy through the route of judicial review in the High Court. This was an utterly wrong-headed view for him to take.

Furthermore, even if his view that the correct course for him to adopt was by way of a judicial review in the High Court, were an acceptable excuse initially, after the refusal of permission by Mr Justice Jackson in July 1999 he had been advised that his course was misconceived and that his better option was to seek leave to appeal out of time against the Chairman's decision. He steadfastly refused to take that advice. He persisted in pursuing his judicial review application to the Court of Appeal and he persisted in pursuing hopeless appeals to the Employment Appeal Tribunal against the decision of 4 July and the refusal by the registrar of permission to extend time for appealing against that decision. Even after the Court of Appeal in February 2000 had given him clear and procedurally sound advice he still failed to address the question appropriately until a further four months had elapsed in June 2000.

The facts of this matter, regretfully, compel us to the conclusion that this is not a case in which it would be proper for us to grant Mr Sojirin the extension of time he seeks to launch an appeal against the Chairman's decision of 29 May 1997. Accordingly we refuse leave and all the appeals must fall at this stage."

12. Mr Sojirin appears in person before me today. He has put before me grounds of appeal in his Notice of Appeal and he has put in a skeleton argument running to seven pages. He has also sought to address me. I tried to explain to him at the outset that what I was concerned with was to see whether he had a case which presented him with a real prospect of success that the Tribunal in the exercise of its discretion to refuse to extend time had erred, but he has found it very difficult to concentrate on any relevant point. In his grounds of appeal he has said, first, that the EAT erred in law in creating unnecessarily long delay and using that delay against him to deny him his right conferred by statute, that being the right not to be unfairly dismissed. Certainly there has been some delay in the EAT hearing Mr Sojirin's application. But looking at the matter overall, it is absurd to say that the EAT thereby erred in law when the bulk of the delay is attributable to Mr Sojirin himself, as the EAT has explained. Mr Sojirin has only himself to blame for being three years out of time in seeking to pursue his main appeal against the decision of 29th May 1997. It was Mr Sojirin's pursuit of hopelessly misconceived judicial review proceedings, right up to this court, that caused the delay; and that is so even after Jackson J told him that it was not the procedure and that he should seek permission to appeal out of time from the Tribunal's decision. Nevertheless, it was another year before he attempted to do so. Mr Sojirin in his skeleton argument blames the Employment Tribunal and the EAT, when he himself had the right to present his complaints promptly but failed to avail himself of that right. I appreciate that he is a litigant in person, but he is able to go to bodies like the CAB, who habitually help litigants in person, including in employment cases.
13. The second ground of appeal that he has raised in his Appellant's Notice is that the Tribunal reached a perverse conclusion in:

(a) failing to inform him of the date of the hearing, contrary to what they had said in a letter of 1st February 1996;

(b) failing to abide by a direction given by Sedley LJ; and

(c) that the Tribunal was grossly negligent in its duties and has sought to punish him for that negligence.

14. The letter of 1st February 1996 was the pro forma letter sent out to all complainants after receipt of the IT1. It said that the complainant would be given 14 days notice in writing of the hearing of the case. But, as I have pointed out, Mr Sojirin had solicitors acting for him. They had presented his originating application, and I assume that they put in the IT1 their name as being his representatives. They had certainly been notified that there was a hearing date of 18th June 1996, because in the letter of 16th May they were writing to Mr Sojirin to say that there had been an adjournment. I know nothing of the circumstances of that adjournment. It would appear from what Mr Sojirin has told me that he never paid Bhardwaj & Co to do any work and so he would not have been prepared for a hearing on 18th June, and probably, therefore, they themselves would have applied for an adjournment as not being ready to deal with Mr Sojirin's case. On the face of their letter, they wrote to Mr Sojirin on 16th May at the right address informing him of that, and they sent him a copy of the notice of the adjournment. Further, on 29th May 1996 those solicitors were sent notice that the hearing was to be on 4th July 1996. They did not cease to be the solicitors on the record for Mr Sojirin until he wrote to the Tribunal on 1st October 1996. If he did not receive communications which were sent to his solicitors, that may be a matter which he should have taken up with them; but it is certainly no excuse for his delays, and it certainly does not show that he was not informed by his solicitors of the date of the hearing. True it is that, nearly three years after the event, the solicitors who appear to have taken over from Bhardwaj & Co, and for whom Mr Bhardwaj was a consultant, say that after the letter of 16th May 1996 there appears to have been no further notice - that is further to the notice about the adjourned hearing - received in respect of the adjourned hearing. As I say, that was nearly three years after the event and, as I have already indicated, the papers before me do include the Tribunal's notice dated 29th May 1996 of the hearing on 4th July 1996, and that notice is addressed to Bhardwaj & Co. Mr Sojirin had presented a complaint to the Tribunal through his solicitors, and it was for him to make sure that he proceeded with his case promptly. If he did not hear from his solicitors, then it was up to him to chase them, and he could always approach the Tribunal to find out what was happening.
15. As for the complaint that Sedley LJ's direction has been ignored, Sedley LJ, as one member of the three-judge court on the judicial review hearing in this court, gave no direction. I say that, having read his judgment in full. Nor could he have given any relevant direction, as he was not dealing with an appeal from the EAT.
16. As for the accusation of negligence by the EAT, that too is in my view wholly misconceived. It is another attempt by Mr Sojirin to attribute blame for his delay to others.
17. I am afraid that, having read all the papers with care, I have not been able to see that there is any real prospect of success on an appeal, limited, as it has to be, to an appeal from the refusal by the EAT to exercise its discretion to extend time. The authorities repeatedly emphasise the need in employment cases for prompt action. Even a short delay can defeat the claims of the applicant.
18. In my judgment the delays in this case are not short, and the excuses given are not cogent. There is no real prospect of success on this appeal. No other compelling reason has been shown why this appeal should go ahead.
19. I would therefore dismiss this application.
Order: Application dismissed.