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
		20th June 2003

1. LORD JUSTICE PETER GIBSON: This is an appeal brought with the permission of this court by Ms Hazel Peters from part of the order made on 26th September 2002 by the Employment Appeal Tribunal, His Honour Judge Peter Clark sitting alone in chambers. Thereby the judge dismissed her appeal from the refusal by the Registrar of the Appeal Tribunal on 5th July 2002 to extend time for appealing. Ms Peters had complained to the Tribunal of unfair dismissal and sex discrimination against the respondent. The respondent was initially stated in the IT1 to be an individual, Mr Chadha, with the address of a business entity, Sage, in Middlesex, but the respondent employer completing the IT3 gave its name as Sat Katar Company Ltd. By a decision sent to the parties on 25th July 2001 the Employment Tribunal sitting at London South dismissed Ms Peters' complaints. She applied for a review. The Tribunal by a decision sent to the parties on 11th March 2002 refused that application.
2. By rule 3(3) of the Employment Appeal Tribunal Rules 1993 ("the Rules") Ms Peters had 42 days in which to institute an appeal against that review decision. The institution of an appeal is by rule 3(1) to be effected by serving on the Appeal Tribunal a number of documents including the notice of appeal. Ms Peters decided to appeal. She says that she posted her notice of appeal on 28th March 2002. Having heard nothing from the Appeal Tribunal, she telephoned the Appeal Tribunal on 23rd April 2002 to inquire what was happening. She was informed that the Appeal Tribunal had received no notice of appeal from her. She was advised to fax to the Appeal Tribunal a copy of the original notice of appeal. She did that the same day. Her notice of appeal was therefore received 11 days out of time. She was informed by the Appeal Tribunal that she needed to apply for an extension of time and give reasons for being late. This she did on 28th April in a letter in which she said that she knew of the 42-day time limit but pointed out that the notice of appeal had been posted well in advance of the deadline of 11th April. She blamed the inefficiency of the Royal Mail. The respondent was given the opportunity to make submissions. By letter dated 29th May 2002 the respondent's solicitors opposed the application, alleging that the proceedings were improper and vexatious and her behaviour unreasonable. They asked for an order against her for costs.
3. The Registrar considered the parties' letters when deciding the application. The decision of the Registrar refusing an extension of time was in what I can say from my experience is a standard form. The reasoning of the Registrar is to be found in the recitals to the order. Save for the reference to the date of the application and to the letters received from each side and save for the insertion of the number of days the application was out of time, the order appears to have been in the form used for those who seek an extension of time when they have sent the notice of appeal by post and it has not arrived in time. The order included the following:

"AND UPON CONSIDERATION of the fact that because the Employment Appeal Tribunal is not part of the Employment Tribunals information is provided with the Employment Tribunal Decision giving details of how to appeal and the address to which appeals should be sent.

AND UPON CONSIDERATION of the fact that it is the duty of the Appellant to ensure that any appeal arrives in time and therefore the Appellant should confirm such arrival and retain any proof of posting.

AND UPON CONSIDERATION of the fact that the appellant should be 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 CONSIDERATION of the fact that it is not an acceptable reason for delay that the documents have apparently completely disappeared in the post, having never been delivered.

AND UPON FURTHER CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1) ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 71C 'there is no excuse, even in the case of unrepresented party, for the ignorance of time limits' and that 'Parties ... are advised not to leave the service of the Notice of Appeal until the last few days of the 42 day period. If they do they run the risk of delay in the delivery of the post'.

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."

The Registrar also refused the respondent's application for costs.

4. The recitals do not acknowledge the particular circumstances of the applicant, in this case that she was a litigant in person and that she was well aware of the time limit and certainly did not leave the service of the notice of appeal until the last few days of the 42-day period. The inclusion of the standard recital to the Abdelghafar case [(1995] ICR 65) suggests that the Registrar took no account of the facts put forward by Ms Peters. The reference to the applicant being provided with information supplied with the Tribunal's decision is also puzzling, as it is not apparent what pertinent information the Registrar thought was supplied to, but overlooked or ignored by, Ms Peters. Given that the Rules allow service by post and provide for an assumption of due delivery, one wonders why the Registrar thought it not an acceptable reason for delay that documents had disappeared in the post without being delivered.
5. Ms Peters appealed to the judge. He heard the appeal on 26th September 2002. Ms Peters appeared in person. The respondent was represented by counsel. The judge referred to the guidance given by Mummery J in Abdelghafar, approved as it was by this court in Aziz [2000] IRLR 111. The judge correctly directed himself by posing three questions:

(1) What is the explanation for the default?

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

(3) Are there circumstances which justify the Appeal Tribunal taking the exceptional step of granting an extension of time?

The judge referred to Ms Peters' explanation that she had posted the notice of appeal on 28th March 2002 and had only discovered it had not been received when she telephoned the Appeal Tribunal on 23rd April. Counsel for the respondent challenged the honesty and fullness of the account given by Ms Peters for the delay. The judge rejected that challenge. He was satisfied that Ms Peters had given an honest and full explanation as to the reasons for her delay.

6. The judge said that the real question was the second question whether the explanation provided a good excuse for the default. He continued:

"14. ... I have to say it does not. Whether or not an Appellant appears in person or is represented by lawyers it is incumbent upon the Appellant to ensure that the Notice of Appeal arrives within the time limit, which this Appellant acknowledges she was well aware of. It would have been the simplest thing for the Appellant to telephone the EAT before the date for appealing came and went, to enquire as to whether or not the Notice of Appeal had been received, no acknowledgment having been sent to the Appellant. She did not do so; as a result the time limit was passed.

15. It is quite clear from the authorities to which I have referred that time limits are strictly enforced in this Appeal Tribunal. In the absence of a good excuse for the delay I am not satisfied that any circumstances arise which would justify me in taking the exceptional step of allowing this appeal and granting an extension of time.

16. It follows, with some regret -- because I accept that the Appellant genuinely wishes to pursue this appeal and it is a matter of great importance to her -- that I must dismiss this appeal."

7. The judge therefore did not consider the third question. He rejected an application by the respondent for costs.
8. After permission to appeal was granted by this court, Ms Peters was able to obtain legal representation and Ms Jane Russell appears for her today. By a letter dated 4th February 2003 the respondent's former solicitors told the Civil Appeals Office that the respondent went into liquidation six months earlier. On 4th March 2003 the liquidators of the respondent told the Civil Appeals Office that there would be no return to unsecured creditors and, by a letter dated 11th March, that the respondent did not intend to be represented at the hearing. The respondent does not appear today. It is doubtful whether the continuation of these proceedings will produce any practical benefit to Ms Peters. However, she wishes to proceed with the appeal for which she has permission and, because it raises a point of some general interest, we will decide the appeal.
9. Ms Russell first submits that Ms Peters complied with rule 3(3)(a) of the Rules, providing, as it does, that an appeal may be instituted within 42 days from the date on which extended written reasons for the decision were sent. She relies on section 7 of the Interpretation Act 1978 which provides:

"Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

This is not a ground for which permission to appeal was given. But, in any event, in the present case we know that service on the Appeal Tribunal was not effected by the posting of the notice of appeal because it was not received.

10. Ms Russell's second submission is of greater weight. She points to the fact that the Appeal Tribunal has a general discretion to extend time under rule 37(1) of the Rules. That discretion is unqualified in any way. It does not, for example, incorporate the test of reasonable practicability such as one finds in section 111(2)(b) of the Employment Rights Act 1996. She accepts, as she must, that it was proper for the Registrar and the Appeal Tribunal to direct themselves by reference to the guidance given in Abdelghafar, but she says that the Registrar erred in the exercise of her discretion by applying too strict a test and by failing to take account of relevant matters. She says that the judge equally erred in upholding the Registrar's decision.
11. In Abdelghafar Mummery J was dealing with a case relating to delay in the presentation of a petition, but he considered the principles which govern the exercise of the Appeal Tribunal's discretion to extend time in other circumstances and identified the factors which should be regarded as relevant. At [1995] ICR at page 70B he pointed out that the grant or refusal of an extension of time is a matter of judicial discretion to be exercised not subjectively or at whim, or by rigid rule of thumb, but in a principled manner in accordance with reason and justice, and that the exercise of discretion is a matter of weighing and balancing all the relevant factors. He said at page 70G that the response of the Appeal Tribunal may depend on the stage which the relevant proceedings had reached, and that in a case of an appeal against a decision on the merits the grounds for extending time are not as strong as when the case has not yet been heard on the merits. He also pointed out that the interests of the parties and of the public in certainty and in the finality of legal proceedings make the court more strict about time limits on appeals. He said at page 70H that an extension of time is an indulgence requested from the court by a party in default, that party's only reasonable or legitimate expectation being that the discretion to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable, and he emphasised the necessity for the applicant to provide the court with an explanation for the delay. In giving guidelines, which he stressed should not fetter the exercise of discretion, he said that the time limit will only be relaxed in rare and exceptional cases where the Appeal Tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules.
12. Whilst various examples are given by Mummery J of explanations which do not excuse the delay, there is no mention of an explanation based on the failure of the postal service to deliver to the Appeal Tribunal an appeal notice which has been committed to the post in time.
13. The authorities show that a highly relevant factor to be taken into account by the Appeal Tribunal is whether the applicant acted reasonably in the steps he or she took to institute the appeal within the time limit. By rule 35(1) of the Rules, any notice or other document required to be served on, or delivered to, the Appeal Tribunal may be sent by post. Moreover, by rule 35(3) (which substantially follows section 7 of the 1978 Act):

"Every document served by post shall be assumed, in the absence of evidence to the contrary, to have been delivered in the normal course of post."

By reference to CPR 6.7 a letter sent by First Class Post would be delivered in the normal course of post on the second day after posting, and that is a relevant matter to be taken into account by appeal tribunals (see Sealy v Consignia [2002] 3 All ER 801 at pages 811 and 12). On the face of it, therefore, in posting the notice of appeal well before the expiry of the time limit and in assuming that it would have been received by the Appeal Tribunal in time, Miss Peters was acting entirely reasonably.

14. If circumstances existed which showed that she knew, or ought to have known, that she should have sought confirmation from the Appeal Tribunal of the receipt of the notice of appeal before she made such enquiry, then that would be a very relevant consideration. If, for example, she was herself, or was taking the advice of, a solicitor who might be expected to have knowledge of the practice of the Appeal Tribunal and to have a system of checking whether communications sent by post were received, then it would be open to argument whether she acted reasonably in allowing nearly four weeks after posting the notice of appeal to go by before getting in touch with the Appeal Tribunal. The Appeal Tribunal in Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 found fault with an applicant whose solicitors had posted an originating application to the Tribunal within five weeks of the expiry of the three-month period for presenting an application but who allowed more than seven weeks to pass after the period had expired before the solicitors found out that the application had not been received. The Appeal Tribunal held that the solicitors had failed to take such steps as were reasonable in the circumstances. That was followed by the Appeal Tribunal in Camden v Islington Community Services NHS Trust [1996] IRLR 381, in which an applicant's solicitor had posted an originating application to a Tribunal eight days before time expired, had expected to receive an acknowledgment by about three weeks later but had then done nothing for a further three weeks after that expected date of receipt of an acknowledgment. The Appeal Tribunal held that for a solicitor to act reasonably, there had to be a system in place for checking whether a reply to a letter sent by post had been received.
15. But it does not follow that a litigant in person like Ms Peters, with no experience of the Appeal Tribunal and with no knowledge of the practice of the Appeal Tribunal, should be expected to have a similar system or practice. If that were to be expected of a litigant, then, in my judgment, some communication from the Tribunal or Appeal Tribunal alerting him or her to the need to make such a check should be shown to have been received by the litigant. As the Registrar pointed out, information was given to Ms Peters about appealing, but we are told that it did not include any advice that if the notice of appeal was sent by post and if no acknowledgment was received from the Appeal Tribunal within some specified time thereafter, the litigant should check with the Appeal Tribunal. These days the court services are expected to be helpful to litigants, and this is particularly so in proceedings before employment tribunals where many litigants have no professional representation.
16. In the circumstances, I do not think that Ms Peters can be said to be at fault in not making enquiry of the Appeal Tribunal until nearly four weeks from sending the notice of appeal. Once told that it had not been received, she acted without delay in faxing the notice of appeal to the Appeal Tribunal. It is understandable that she feels aggrieved at being penalised for matters outside her control.
17. I return to the decision of the Registrar.
18. The recitals to the order indicate that no account was taken of the particular circumstances of this case, viz. that Ms Peters was a litigant in person and not a lawyer and not one who could be expected to know the practice of the Appeal Tribunal or to have a checking system such as would have caused her to make enquiry of the Appeal Tribunal earlier. The Registrar did not recognise that Ms Peters was entitled to assume, as rule 35(3) provides, that the notice of appeal would have been received by the Appeal Tribunal until, by her enquiry, she found that it had not in fact arrived. Nor did the Registrar recognise that the fact that a letter has been lost in the post through no fault of the applicant is a relevant consideration on an application to extend time. The Registrar appears to have treated Ms Peters no differently from an applicant who leaves appealing to the last minute or is ignorant of the time limit. Further, the Registrar appears wrongly to have assumed that Ms Peters was provided with information relevant to the material point, such as advice to check with the Appeal Tribunal whether a notice of appeal sent by post has been received. The judge in turn seems to me, with all respect to him, to have been wrong not to recognise the errors of the Registrar and in not acknowledging that a litigant in person in Ms Peters' circumstances could quite reasonably have proceeded on the assumption in rule 35(3) for a period as short as that in this case.
19. In these special circumstances, I would allow the appeal, set aside the order of the judge and the Registrar. Because of the circumstances to which I have adverted, I would regard it as unnecessary to remit the matter to the Appeal Tribunal. The discretion seems to me to be one which can only be exercised one way, and that is to grant the extension of time sought by Ms Peters.
20. I will not end this judgment without adding two further observations. One is that Miss Peters, however upset by the original decision of the Tribunal, should consider with her legal advisers whether there is any point in continuing with her proceedings. She has a long and difficult road on which to travel if she is ever to obtain a decision which vindicates her complaints, and it would appear that even then there is real doubt as to whether she will recover a penny by way of compensation. But I accept that that is a matter for her.
21. The second point is this. I express the hope that the Appeal Tribunal will reconsider the practice in relation to such applications. It seems to me not unreasonable that the information pack which is provided to litigants together with the decision of the Employment Tribunal should include some further guidance as to what litigants should do if they wish to appeal a decision. If the appellants put the notice of appeal in the post but nothing further is heard, they should be told how long they should wait before they should enquire from the Appeal Tribunal why they have received no acknowledgment. I suggest too that the practice of the Registrar of the Appeal Tribunal of including standard recitals which do not take proper account of the particular circumstances of the applicant also needs reconsideration.
22. LORD JUSTICE KEENE: I agree.
23. SIR MARTIN NOURSE: I also agree.

Order: Appeal allowed with costs.