England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC; His Honour Judge Hand QC
Case No: UKEATPA/1146/09/LA, BAILII: [2010] UKEAT 1146_09_2907

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/06/2011

Lord Justice Rimer :

1. Various applications are before me, but the central ones are renewed applications for permission to appeal, permission having been previously refused both below and by Lord Justice Mummery on the papers. The applicant is Justin Zinda, the claimant in employment tribunal proceedings he brought against his former employer, The Governing Body of Barn Hill Community High, and against two individuals, Mr Marshall and Mrs Wathen. All three are respondents to these applications. Two orders are under challenge. First, an order made by His Honour Judge McMullen QC on 29 July 2010 in the Employment Appeal Tribunal refusing Mr Zinda's application to adduce fresh evidence and dismissing his appeal against a decision of the Registrar refusing him an extension of time for appealing (by way of a 'fresh notice of appeal' under Rule 3(8) of the Employment Tribunal Rules 1993, as amended) against a judgment of the Watford Employment Tribunal (Employment Judge Henry presiding) sent to the parties on 15 January 2009. Second, an order made by His Honour Judge Hand QC on 8 November 2011 in the appeal tribunal dismissing another appeal against an order of the Registrar. The effect of that order was to refuse Mr Zinda's application for a review by Underhill J, the President of the appeal tribunal, of his earlier decision of 22 February 2010. That decision was one under Rule 3(7) of the 1993 Rules that no further action should be taken on Mr Zinda's original notice of appeal to the appeal tribunal.

The facts

2. Mr Zinda was formerly employed as a teacher at Barn Hill Community School. The first respondent is the School's Governing Body; the second (Mr Marshall) is a former Head Teacher of the School; and the third (Mrs Wathen), is another teacher at the School and the former Head of Technology. Mr Zinda commenced work at the School in September 2005 as a supply teacher in the Technology department. In January 2006 he became a permanent employee as a teacher of technology and his subsequent appointment as Director of Learning commenced in September 2006. He resigned on 25 May 2007. The effective date of termination ('EDT') of his employment was 31 August 2007.
3. Mr Zinda brought two tribunal claims against the respondents, in June and September 2007. He asserted in the former that he had been the victim of race discrimination, victimisation and harassment, conduct which he said had led to his resignation, and he claimed he had been constructively dismissed. He brought the second claim because of his concern that his first claim was issued before his EDT and it was confined to a repeat of his constructive dismissal claim. His many complaints were directed at Mrs Wathen. He alleged that, following his appointment as Director of Learning, she had engaged in a campaign of bullying, criticism and harassment against him.
4. Mr Zinda's claims were heard in July (5 days), November (5 days) and December 2008 (6 days). Although he was represented by ABM Solicitors until about mid-July 2008, they ceased to act for him just before the start of the hearing, at which he represented himself. Mr A. Fraser-Urquhart of counsel represented the respondents. The tribunal sent its judgment (without reasons) to the parties on 15 January 2009. It dismissed Mr Zinda's race claims and declared that there had been no breach of his employment contract entitling him to treat the employment relationship as at an end and that he had not been constructively dismissed. All his claims failed.
5. There followed a considerable delay in the production of the tribunal's reasons for that judgment. Both sides became concerned about that and on 29 June 2009 Mr Zinda applied to the tribunal for a review of its January judgment. Whilst I understand his frustration at the delay, his application was obviously premature: he needed the reasons before he could consider making such an application. It was refused by Employment Judge Henry by a decision sent to the parties on 28 July 2009, the primary ground being that it was premature. In paragraphs 4 to 8 Judge Henry explained the delay in producing the reasons. Its essence was that whilst he had dictated a draft in January, he only saw the typed version on his return from an extended leave, following which it was sent to the two lay members for their consideration and approval. For reasons that will appear, I shall quote paragraph 6:

'6. The parties will appreciate, as the judge had informed them, that he would be absent for a period of some months, the transcribed document, being the tribunals reasons to the Judgment, was then only seen by the judge on his return.'

6. The reasons for the judgment were also sent to the parties on 28 July 2009. They reflected the input of considerable work by Judge Henry, running to 61 single-spaced pages comprising 369 paragraphs. The tribunal identified the issues it had to decide under the headings of public humiliation, excessive criticism, unfair or different treatment, malicious information, victimisation and constructive dismissal.
7. Mr Zinda wished to appeal to the appeal tribunal against the tribunal's judgment. He delivered his notice of appeal on 7 September 2009, within the prescribed 42-day time limit. On 6 October 2009 (by when his time for appealing had expired) he wrote to the appeal tribunal with proposed amendments to his notice. His covering letter explained why he was proposing them. In paragraph 2 he wrote that he was 'conscious of the fact that the Employment Appeal Tribunal has strict time limit [sic] for lodging appeals, …' as indeed it does. He was by then re-training as a lawyer. The amended grounds of appeal occupied some 16 single-spaced pages.
8. The grounds were many and discursive. It is unnecessary to refer to any but two. In paragraph (i) there was a point relating to a potential witness, Mr Rupra (an IT technician), who Mr Zinda said he had asked the tribunal to call as a witness, so that both sides could cross-examine him. He asserted that the tribunal's response was that it was for the parties to call witnesses and that it had no power to do what was asked of it. He disputed that the tribunal had no such power and complained that it had made no reference to his failed application in its reasons. He sought to show how 'vital' Mr Rupra's evidence would have been to his case. He said that the same error was made by the tribunal in relation to other witnesses, Mr Dutta and Mr Stapley, although it is unclear whether (having lost on the Rupra application) he made a like application in respect of these two witnesses. In paragraph (ii) (sub-paragraph 21) of his grounds, Mr Zinda also asserted that the tribunal's 'culpable delay' in producing its reasons meant that it was impossible for it to have a correct recollection of the facts. He produced to the appeal tribunal a copy of a letter dated 17 November 2008 which he said he had addressed to the employment tribunal on 18 November 2008 (the first day of the resumed hearing following the July adjournment). He there sought the addition of three further respondents to the proceedings and also wrote, in part:

'Also considering that the Respondents are adding new witness statements and keep blaming Jarvis and Mr Vjay Rupra (IT Technician) for their action, I am requesting that the Tribunal orders (a) the Manager of Jarvis (in the school), (b) the School Business Manager (who liaises with Jarvis) and (c) Mr Rupra to attend these proceedings as witnesses who could be cross-examined by both the Claimant and the Respondent.

This application is necessary considering the injustice I will suffer if the above-mentioned people are not ordered to attend the proceedings. I would ask the Tribunal to take into consideration the guidelines set out by the National Industrial Relations Court in Cocking v. Sandhurst (Stationers) Ltd in deciding whether to accede to this application.' (Emphasis as in the original).

The Cocking case, [1974] ICR 650, has nothing to do with the calling of witnesses and so provided no support for that aspect of his application.

9. Mr Zinda's application for permission came before Underhill J on the paper 'sift', the system by which judges of the appeal tribunal assess on the papers whether notices of appeal raise reasonably arguable points meriting consideration at a full hearing on notice to the respondent. Appeals against decisions of an employment tribunal are confined to appeals based on alleged errors of law, whereas many proposed appeals amount to nothing more than a bid to re-open the findings of fact. Underhill J made an order on 18 November 2009 staying the proposed appeal until after the employment tribunal had answered the following questions:

'(a) what decision the Tribunal made on the Appellant's application dated the 17^th day of November 2008 (copy attached) for an order that the Mr Vijay Rupra should attend as a witness to be cross-examined by both parties;

(b) when that decision was made;

(c) whether a separate order (with or without reasons) was promulgated in relation to the decision, if so supplying a copy of the same;

(d) what the Tribunal's reasons were for that decision;

(e) on what occasion the parties were informed (as referred to at para. 6 of the review decision of the 28^th day of July 2009) that the Judge would be absent for some months, and the gist of what was said about that absence.' [I quoted paragraph 6 of that decision at paragraph [5] above].

10. The Tribunals Service replied on 7 January 2010 to the following effect. Employment Judge Henry had not previously seen the letter of 17 November 2008, which was not in the tribunal's file. The last email received from Mr Zinda prior to the resumption of the hearing on 18 November 2008 was dated 21 October 2008. The tribunal had granted a witness order in respect of Mr Rupra on 23 July 2008. Mr Zinda applied on 18 November 2008 to be able to cross-examine Mr Rupra and was told that a party may not cross-examine his own witness. Mr Zinda then asked the tribunal to call Mr Rupra as a witness but gave no reasons for such request other than that he wished to cross-examine him, without explaining why. Mr Rupra's evidence apparently went to a single incident over Mr Zinda having access to a computer, when Mrs Wathen was stating that Mr Rupra had given instructions for it to be defragmented. In the absence of an explanation as to why the tribunal should call Mr Rupra 'as a neutral witness', Judge Henry declined to make the order sought. Mr Rupra remained the subject of Mr Zinda's witness order, but Mr Zinda then declined to call him and asked for the witness order to be withdrawn. He told the tribunal that he had not served the order on Mr Rupra, although he was in possession of it. That decision was made at 10.55 am on 18 November 2008. No further order was made or promulgated in respect of it. The tribunal's reasons for not granting a neutral witness order in respect of Mr Rupra were 'that [he] was already under an order to attend and [Mr Zinda] had not given any reasons why he should seek to cross-examine that witness.' Judge Henry had told the parties on 4 December 2008 that he would be absent in January to March 2009 on leave and would endeavour to promulgate the judgment before going on leave. It was promulgated on 15 January 2009 but the reasons were not then ready. For various reasons it was not possible to promulgate them until Judge Henry's return in July/August 2008.
11. Mr Zinda's comment on that, in his letter to the appeal tribunal of 12 January 2010, was that he did give reasons for wanting to cross-examine Mr Rupra. He referred to a letter of 14 July 2008 that his solicitors, ABM Solicitors, had sent to the tribunal and copied to the respondents' solicitor and which asserted difficulties with regard to agreeing bundles and that the respondents had allegedly tried to harass and intimidate witnesses. It did not, however, suggest that Mr Zinda might want to cross-examine Mr Rupra. The letter does not support the proposition for which Mr Zinda produced it.
12. Having received the tribunal's explanation and Mr Zinda's response, Underhill J ruled on the papers on Mr Zinda's notice of appeal. His ruling was conveyed to Mr Zinda by the Deputy Registrar's letter of 22 February 2010. It reflected that Underhill J accepted the notice of appeal, as amended on 6 October 2008, as the relevant notice. The letter set out his reasons, which dealt fully with the grounds of appeal under its five headings. As for the Rupra point, Underhill J saw no error in the tribunal's refusal to call him itself so that he could be cross-examined, which would have been very unusual. The tribunal was entitled to take the view that no case for taking the requested course had been shown. His view on that was not altered by Mr Zinda's letter of 12 January 2010. He explained why he otherwise identified no arguable error of law on the part of the tribunal. The Deputy Registrar's letter concluded as follows:

'For the above reasons the learned Judge considers that this Appeal has no reasonable prospect of success and that, in accordance with Rule 3(7) [of the Employment Appeal Tribunal Rules 1993], no further action will be taken on it.

Your attention is drawn to Rules 3(8) and 3(10) of the EAT Rules. A copy of Rule 3 is enclosed with this letter.'

13. If the appellant is dissatisfied with such a ruling, and as the second quoted paragraph effectively explained, Rule 3 gives him two options. By Rule 3(8), he can serve a fresh notice of appeal 'within the time remaining [for appealing] or within 28 days from the date on which the notification under paragraph 7 was sent to him, whichever is the longer period.' In Mr Zinda's case, the 28-day period was the longer period. If that option is taken, the fresh notice of appeal is treated as an original notice of appeal (and is liable to receive like Rule 3(7) treatment, as often happens). Alternatively, by Rule 3(10) the appellant can, within the same 28 day period, require 'the matter' to be heard by a judge of the appeal tribunal, who must then make a direction as to whether any further action should be taken on the notice of appeal.
14. Mr Zinda chose to serve a fresh notice as permitted by Rule 3(8). He had to serve it by 4 pm on 22 March 2010, being 28 days from 22 February 2009, when the Deputy Registrar's letter was sent to him, although he only received it on 25 February 2010. His fresh notice was dated 22 March 2010 but was only delivered to the appeal tribunal, by email from Hong Kong (Mr Zinda being then en route to Beijing), on 24 March 2010. That was two days late. Before coming to the consequences of that, I point out that in section B of his notice he asserted that Judge Henry had been wrong in saying he had never seen the letter of 17 November 2008, which he said was handed to the judge and the respondents (on, I presume, 18 November 2008) 'but the Judge decided to return it to me and said each party is responsible to invite his own witnesses. The Respondents agreed and returned the letter to me.' That may be an accurate recollection and it is possible that Mr Henry's explanation on 7 January 2010 (over 13 months later) that he had never seen the letter was in error and that he had simply forgotten that it had been handed to him and returned.
15. In the same document, Mr Zinda repeated his assertion that he had explained to the tribunal his reason for wanting the tribunal to call Mr Rupra. He asserted in section A.1 that the tribunal was 'repeatedly informed about the following facts', which include the assertion in paragraph A.1.1 that Mr Rupra had been employed by the school but was '… initially working for another organization (Jarvis), shortly prior to the hearing. The tribunal was told by the Appellant repeatedly that Mr Rupra, as a result, could no longer certify against the school – hence the application for a neutral witness order.' Precisely when these points were 'repeatedly' made is unexplained – as was the need to keep repeating them. I cite the following two paragraphs in section A.1 to illustrate the lack of focus of the points that Mr Zinda was making:

'A.1.1 The Tribunal was informed that there were intimidation [sic] of witnesses. Witness statements were written and the complaints were heard at the hearing. I informed the Tribunal by letters (please see my communication of 12 January 2010 regarding intimidation) and during the hearing repeatedly.

A.1.2 The tribunal was repeatedly informed that the Respondents were stopping the Appellant from getting in touch with Mr Rupra by refusing the Appellant access to the school and refusing to issue him with Mr Rupra contact details. The Appellant asked for Mr Rupra's address but his request was denied. So the Appellant could not even serve the initial order even if Mr Rupra was free to testify. The Employment Appeal tribunal is asked to refer to the incident of 20^th July 2007 in my witness statement (at the end of term – when the Appellant tried to deliver a letter to the Respondents).'

16. By a letter of 24 March 2010 the Registrar informed Mr Zinda of the delay in the filing of his further notice of appeal, referring him also to paragraph 9.6 of the Employment Appeal Tribunal Practice Direction and Practice Statement 2008 (which provides a general explanation of the Rule 3(7), (8) and (10) procedure) and to Rule 37 of the Employment Appeal Tribunal Rules 1993 (which deals with time limits and applications for extension). On 25 March 2010 Mr Zinda (from an airport in Shanghai) applied for an extension of time, advancing an explanation as to why he had not filed his fresh notice within the 28-day period, which he supplemented by his letter of 31 March 2010.
17. On 9 April 2010 the Registrar refused an extension. Her order was accompanied by her written reasons. She regarded the strict approach as to the need for timely compliance with the appeal tribunal's rules as to the filing of a notice of appeal as applying equally to the filing of a fresh notice under Rule 3(8). She explained why she considered Mr Zinda had produced no reason why he could not have complied with the 28 day limit. She referred to authorities on the time limit point. On 14 April 2010 Mr Zinda (now in Beijing) filed a notice of appeal against that order. He accepted that his fresh notice was filed two days late but asserted that there were exceptional circumstances justifying an extension of time and he set out his position.
18. In the meantime, two things had happened. First, on 26 March 2010 the respondents submitted an application to the employment tribunal for a costs order against Mr Zinda. They relied on rule 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, asserting that his bringing of the proceedings had been misconceived and that in conducting them he had acted vexatiously, abusively, disruptively or otherwise unreasonably. Their criticism of Mr Zinda's conduct of the proceedings (including criticism of his allegations that it had intimidated witnesses) was severe and occupied over six single-spaced pages.
19. Second, on a date in 2009 unknown to me Mr Zinda had started another employment tribunal claim against the respondents. It related to their conduct in relation to their handling of documents at the substantive hearing of his two tribunal applications in 2008. He appears to have complained that they had deliberately confused or misled him in relation to bundles and their contents. The complaints included an allegation that they had fabricated documents. He alleged that this amounted to victimisation.
20. On 12 May 2010 the employment tribunal gave directions for the holding on 27 July 2010 of a pre-hearing review in that claim. On the same day it gave notice that the hearing of the respondents' costs application in the earlier proceedings would be on 17 August 2010. Mr Zinda's application for an adjournment of those hearings was refused on 2 June 2010.
21. Mr Zinda appears only to have received a copy of the costs application on 27 April 2010. He wrote to the appeal tribunal on 6 June 2010, asserting that it:

'…unwittingly totally supports my reasons for appeal (as outlined in my initial notice of appeal). It also proves that the ET judge's response (dated 7 January 2010, please see pp 92-95 of the bundle) to the EAT sealed order (dated 18 November 2010) was totally untruthful.'

He did not explain why the application did either of those things but said that he was relying upon it as providing 'further grounds why both my appeal against the Registrar's order and fresh notice of appeal should be allowed.' He continued:

'4. Relying upon his immunity from prosecution, the ET judge, in his response dated 7 January 2010, had deliberately excluded evidence and in doing so, he had ipso facto tried to exclude justice because evidence is the basis of justice.

5. Under these circumstances, the chances for me to have a fair hearing at the Watford ET are nil. I am therefore applying that all my future ET hearings (after the EAT hearings) be moved to another neutral ET.' (Emphasis as in the original)

22. On 7 June 2010 Mr Zinda wrote to the employment tribunal asking for all his cases to be moved 'to a totally new, neutral and independent Employment Tribunal (excluding all ETs which employ Mr Henry, even part-time)', his reasons being those in his letter to the appeal tribunal of 6 June 2010, of which he provided a copy. The respondents opposed any transfer, for obvious reasons: how could another tribunal decide their costs application? The application was refused on 15 June 2010.
23. On 11 June 2010 Mr Zinda wrote to the appeal tribunal asking to deploy the respondents' costs application as fresh evidence in support of his appeal against the Registrar's order and of his fresh notice of appeal. He asserted it was relevant to the failure of the tribunal to use its discretion to call neutral witnesses and to deal with issues of fabricated documents. On 24 June 2010 the appeal tribunal replied that his application to adduce the fresh evidence was to be taken as a preliminary point at the forthcoming appeal against the Registrar's order refusing an extension of time. On 20 July 2010 he wrote to the employment tribunal suggesting that Judge Henry's response to the appeal tribunal conflicted with the account of events asserted by the respondents in their letter of 26 March 2010. This is the heart of the point that he wanted to make good by adducing the respondents' costs application as 'fresh evidence.' I should refer now to what he seeks to derive from the costs application. With respect to Mr Zinda, who made it plain in his address to me how passionately he believes in the rightness of this aspect of his case, his assertion that the costs application showed that Judge Henry was untruthful in his response of 7 January 2010 is groundless. Mr Zinda ought never to have advanced such an allegation.
24. To make that good, I have to illustrate a negative, which would most easily be performed by quoting the whole of the respondents' costs application. That, however, would be tedious and unnecessary. It is sufficient to refer to the essence of what Mr Zinda relies upon. The first head of attack advanced against him in it is that on a number of occasions he had alleged that the respondents were intimidating and pressurising witnesses, two occasions identified being on 17 June and Mr Zinda's solicitors' letter of 14 July 2008 (to which I have already referred). The respondents dispute that there was any substance in the allegations, but it is, I understand, common ground that Mr Zinda was making them. The costs application then records that on 16 July 2008 Mr Zinda submitted an application for witness orders in respect of all his witnesses. There is then a reference to the events during the July 2008 hearing before the tribunal in relation to witnesses. I shall quote all of that, and also what the application said about the later events of 18 November 2008:

'At the end of the first day, the Judge asked the Claimant to clarify the position with respect to his witnesses and whether the evidence to be given by the parents could be dispensed with as it was likely to be hearsay. The Judge directed the Claimant to give further thought to the witnesses to be called and to address the issue first thing on the second day of the hearing.

On the second day, 22 July 2008, the Claimant attended the hearing with some of his witnesses and asked that the students be interjected as they had taken time off from work to attend on that day. The Claimant continued with his allegations of intimidation.

The Claimant asked the Judge for witness orders for his witnesses so that they could take time off work. He then requested witness orders on the basis that his witnesses were reluctant to come forward as they had been systematically interviewed by the Respondent and intimidated. The Claimant also referred to another member of staff at the School, Vijay Rupra, for whom a witness statement had not been produced. The Claimant informed the Judge that Mr Rupra was one of the witnesses who had changed his mind to come forward to the tribunal.

As the Claimant would not relent with respect to the allegations of intimidation, the Judge asked to hear evidence about intimidation and directed the Claimant to identify the witnesses who were alleging that they had been intimidated by the Respondents and that they were to provide statements setting out the allegations of intimidation for the Respondents to comment. The Respondents were to respond to the statements and the allegations. The Tribunal would consider issuing witness orders for the witnesses once identified.

On the third day of the hearing (23^rd July) the Claimant stated that he required a witness order for L. Edward, M.O. Callaghan, R. John, C. Graham, V. Rupra and R. Chand, alleging that R. Chand had also been intimidated by the Respondents.

At 11.55 that day the Judge issued witness orders for the Claimant to serve on the witnesses. Our recollection is that the witness orders for the parents were declined on the basis that their evidence was limited to hearsay.

At the end of the hearing on day four (24 July 2008) the Claimant stated that he no longer wished to call Mr Rupra to the hearing because he had been influenced by the Respondents. The Claimant also stated that he had not as at that time served the witness order on Mr Rupra.

The hearing had to be reconvened on 18 November 2008. The Claimant requested the Tribunal to grant a witness order for Mr Rupra so that he could cross-examine Mr Rupra. The Judge advised the Claimant that he could not cross-examine his own witness. The Claimant then asked the ET to call Mr Rupra so that he could be cross-examined by him even though the ET had previously issued a witness order for Mr Rupra at the behest of Claimant. At the end of the hearing on 18 November the Claimant advised the Tribunal that he had not served the witness order on Mr Rupra and that he would not be calling him if he could not cross-examine him. The Judge withdrew the witness order for Mr Rupra.

Also on 18 November the Claimant stated that a student Corrine Edwards said the pressure was too much and asked the Judge to issue a witness order for her. The Claimant also advised that Mr Dutta would not be attending as he felt unwell. Also on that day the Claimant asked the Tribunal to include Ms Michelle Moore as a named Respondent to the proceedings which the ET declined.

At no time did the Claimant produce to the Tribunal evidence of intimidation of witnesses nor did his witnesses give evidence in this regard.'

25. Reducing that to its essence, it shows that Mr Zinda was in July 2008 (whether justifiably or not) asserting that the respondents had been intimidating his witnesses. He asked for witness orders and did so for two purposes. First, because they would apparently assist the witnesses to take time off work, Second, because certain witnesses – including Mr Rupra --were said to be reluctant to come forward. Mr Zinda asked on 23 July for, and was granted, witness orders for various witnesses, including Mr Rupra. On 24 July 2008 he then said he no longer wished to call Mr Rupra, as he had been influenced by the respondents. The case was adjourned to 18 November 2008 when it is said that Mr Zinda first asked the tribunal for a witness order to call Mr Rupra so that he could cross-examine him. When told he could not cross-examine his own witness, he asked the tribunal to call him so that he could then cross-examine him.
26. It follows that the first occasion when, according to the costs application, Mr Zinda raised the point that he wanted to cross-examine Mr Rupra was 18 November 2008. It is not there said that he gave any reason why he wanted to. Whilst the account of the events of 18 November does not tally precisely with the judge's, the account is consistent with the judge's account in this respect. The respondents' account does not suggest that at any point during the July hearing Mr Zinda had indicated any wish to cross-examine Mr Rupra, let alone that he had advanced a reason why he should want or be allowed to do so. The essence of his position in July was that certain witnesses, including Mr Rupra, had become reluctant to attend and therefore he wanted witness orders for them. There is nothing unusual about that. Witnesses are often reluctant to attend voluntarily and the whole point of a witness order is to require them to attend. When they do, they are still the witnesses of he who calls them, who cannot ordinarily cross-examine them.
27. Nothing that transpired in July 2008 therefore provided any express explanation of why in November 2008 Mr Zinda was seeking – for the first time – to cross-examine Mr Rupra. Nor, according to the judge and the respondents, was any explanation provided on 18 November. The highest that Mr Zinda can put his case is that, having told the tribunal on 24 July that Mr Rupra had been influenced by the respondents, the tribunal ought – four months later on 18 November -- to have understood that the reason he wanted to cross-examine Mr Rupra is because he had been so influenced by the respondents as to be likely to give unreliable evidence.
28. There is, however, no justification at all for attributing such an understanding to the tribunal. It is elementary that it was on 18 November, when he made his application in relation to Mr Rupra, that Mr Zinda had to advance the reason for his application; and that he would also have to satisfy the tribunal that it was well-founded. The judge's position is that no reason was advanced and the respondents' costs application does not show or suggest anything different. The submission by Mr Zinda that in this respect the judge was being 'totally untruthful' is an accusation for which he has not provided any basis; it is certainly not supported by the respondents' costs application.
29. In my judgment, therefore, the 'fresh evidence' said to be represented by the respondents' costs application is not even of arguable assistance to Mr Zinda in his claim that Judge Henry was incorrect in saying that he had not supported his request for a 'neutral witness' order with any reasoning.
30. On 21 July 2010 Mr Zinda made another application to the employment tribunal to adjourn the forthcoming hearings (fixed for 27 July and 17 August 2010) until after the outcome of his appeal against the Registrar's order due to be heard on 29 July 2010. On 23 July 2010 Employment Judge Mahoney refused to postpone the hearing fixed for 27 July 2010, for the reason that the pending appeal 'does not relate to this claim'.
31. On 23 July 2010 Mr Zinda filed a notice of appeal at the appeal tribunal against that order and also against the employment tribunal's earlier order of 15 June 2010 (paragraph [22] above). The thrust of his grounds was that his appeal needed to be determined first and that he could no longer expect fair and neutral treatment from the Watford tribunal.
32. On 27 July 2010 the employment tribunal adjourned to 17 August 2010 the pre-hearing review in the new claim that Mr Zinda had commenced. Its order reflected that the matters to be decided at the adjourned hearing were whether the claim should be struck out as having no reasonable prospect of success, whether Mr Zinda should be required to pay a deposit and whether his victimisation claim was time-barred.

The hearing before Judge McMullen on 29 July 2010

33. I come to Judge McMullen's order of 29 July 2010, the first order against which Mr Zinda seeks permission to appeal. The matter before Judge McMullen was whether Mr Zinda was entitled to a two-day extension for the filing of his fresh notice of appeal. Mr Zinda appeared in person before Judge McMullen. Mr Fraser-Urquhart appeared for the respondents. Judge McMullen, in his judgment, summarised the background succinctly. The letter from the Deputy Registrar setting out Underhill J's Rule 3(7) order included a copy of Rule 3, referred expressly to Rule 3(8) and (10)) and was also accompanied by the appeal tribunal's Practice Direction. Mr Zinda knew that time limits for appeals were tight. He had read Rule 3, which he said he did not understand because it referred to matters of 'national security'. Rule 3 does so refer, but the references were obviously irrelevant to Mr Zinda's case, the relevant provisions being Rules 3(8) and (10), to which he had been expressly referred by the Deputy Registrar. He sought advice from Hillingdon Law Centre, which advised him on 3 March 2010 that an appeal from the appeal tribunal lay to the Court of Appeal. That was correct in principle but not relevant advice for Mr Zinda's purposes. What he needed, and wanted, to do was to serve a fresh notice of appeal in time under Rule 3(8). He panicked.
34. By 8 March 2010 he was under some pressure from various quarters. He was due to attend a briefing at University College in relation to training in Beijing. He had a hearing at Wandsworth County Court in relation to other proceedings. He also, found Judge McMullen, knew that he had 28 days from the date of Underhill J's Rule 3(7) decision, but he was also not sure that that advice was correct, as he claimed that the appeal tribunal was issuing conflicting messages. He decided nevertheless to go to Geneva on 12 March as part of his training, taking the documents with him and intending to draft his revised grounds of appeal there. Judge McMullen found that 'he knew before he left that finding time and access to the Internet would be problematic.'
35. He left for Geneva on 12 March and returned home on 20 March, to 'change suitcases.' Judge McMullen found that:

'12. … He said he was hoping to complete drafting while he was in Geneva and he would be able to post or email the EAT with his appeal on the 21^st. But because of difficulties with the Internet he did not allow himself sufficient time. He then went on, having had no sleep at all, to fly via the Gulf to Hong Kong. While in Hong Kong, on 24^th March 2010, he submitted the appeal.

13. He tells me that the appeal was written almost in its entirety while he was in Geneva, that is 20 March 2010. He also points out that there is a time difference in Hong Kong of 7 or 8 hours and this also created a difficulty.'

36. Judge McMullen referred, in paragraph 14, to Rule 3 and to various relevant authorities relating to time limits and explained in paragraph 15 that although the matter before him was an appeal from the Registrar, he approached the appeal on the basis that he was going to make up his own mind on the material before him. In effect, he gave Mr Zinda the benefit of a re-hearing.
37. In paragraph 17, Judge McMullen dealt with Mr Zinda's claimed confusion about advice from the appeal tribunal, Hillingdon Law Centre and the Court of Appeal. He said that that became irrelevant by 8 March 2010 when Mr Zinda decided to:

'… go ahead knowing the deadline of submitting the fresh notice to the EAT. He never did submit an application for permission to the Court of Appeal. So what he decided to do on 8 March, by way of submitting a fresh Notice of Appeal within 28 days of the EAT was in fact done albeit two days late. The EAT officer who told him about the procedure at the EAT was correct. Whatever advice was given by Hillingdon did not affect the timing of the fresh Notice of Appeal.'

38. In paragraph 18 Judge McMullen rejected Mr Zinda's point that he had been confused by the reference in Rule 3 to 'national security'. In substance, he held that any confusion was Mr Zinda's fault as he knew or ought to have known what he had to do in order to lodge the notice of appeal. In paragraph 19, he rejected on the facts Mr Zinda's claim that he did not have time to submit it. He said:

'… As he told me, almost the entirety of the Notice of Appeal was drafted while he was in Geneva, that is he could have brought it back from Geneva and submitted it while he was in the UK on 20, 21 or 22 March. He chose instead to take the material to the Far East in order to complete it from there.'

39. In paragraph 20, Judge McMullen found that the reason he did not file the fresh notice in time was because he had decided to prioritise the matter of his legal training. As for the timing difference between Hong Kong and the UK, by the time he got to Hong Kong he was already out of time.
40. Judge McMullen's conclusion was, therefore, that there was no exceptional reason explaining the failure to file the notice in time and therefore, by reference to the applicable practice in the appeal tribunal, no basis for an extension of time. Judge McMullen decided that it was unnecessary for him to have any regard to the claimed merits of the proposed appeal, as he was able to decide the appeal before him without making a decision on them.
41. Judge McMullen, in paragraph 24, perhaps made an error of fact when referring to Mr Zinda's application to adduce fresh evidence in the nature of the respondents' costs application. He said:

'… I ruled it was not necessary for the hearing before me. These relate to the Employment Judge's response to the present matter when he stayed the case. All this material was before the President when he formed the opinion that the Claimant's case had no reasonable prospect of success.'

42. Of course the 'fresh evidence' was not before Underhill J. But whether Judge McMullen was in fact in error may be in doubt because in paragraph 26, he apparently recognised that Underhill J had not seen the 'fresh evidence'. He there said:

'Mr Fraser-Urquhart, relying upon, at the very least the President's opinion, submitted this was good evidence that there was no merit in the appeal and the President had given his opinion after seeing the Judge's notes. He will not have seen what the Claimant wishes to draw attention to in the Respondent's submissions on costs. Mr Fraser-Urquhart also reminds me that the fresh Notice of Appeal is very substantially the same as the first and second Notices of Appeal because there is express incorporation of them. Therefore, the opinion given by the President still stands. But I decline to make a decision upon this. It is not necessary for me to consider the merits for the purposes of the exercise of discretion.' (My emphasis)

43. Judge McMullen concluded his judgment by saying:

'Mr Zinda is in a better position than many before this court, he being a highly articulate communicator and able to represent himself and demonstrably able to comply with the rules as he has previously shown. In those circumstances, there is no basis on which I should exercise discretion to allow this appeal two days out of time. This is not an exceptional case.'

Mr Zinda's wish to challenge to that decision

44. Any appeal to the Court of Appeal against Judge McMullen's order would not be in the nature of a re-hearing afresh of Mr Zinda's application for an extension of time for the service of his fresh notice of appeal. It would be confined to whether Judge McMullen misdirected himself in law in relation to the way in which he disposed of the appeal. In my judgment, an appeal on that basis would have no prospect of success. A considerable body of reported guidance has developed in relation to the principles by reference to which extensions of time for appealing to the appeal tribunal may or may not be granted; and they are principles which, as reflected in paragraph 24 of Judge McMullen's judgment, require an exceptional case to be shown in order for an extension to be granted. That is because the 42-day time for appealing to the appeal tribunal is exceptionally generous as compared, for example, with the 21-day time limit that ordinarily applies for appeals from a court to the Court of Appeal. In the present case, the relevant period was a 28-day one that came on top of the original 42-day one – thus giving Mr Zinda a total of 10 weeks. It is, as Judge McMullen tacitly recognised, obvious that like strict principles apply equally to compliance with that additional 28-day period.
45. There is no need for extensive reference to the reported authorities relating to extensions of time for filing notices of appeal in the appeal tribunal. The essence of the principles is, I consider, sufficiently summarised in paragraphs [3] to [7] of my judgment in Jurkowska v. Hlmad Limited [2008] EWCA Civ 231 (to which Judge McMullen referred). That shows that the time limits are expected to be observed and that the rules are the same for those acting in person as for those professionally represented. The rules, said Mummery J (as he then was) in United Arab Emirates v. Abdelghafar [1995] IRLR 243, paragraph [27], 'will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down by the Rules.' Acceptable excuses do not include ignorance of the time limits; or oversights of the passing of the time limit, for example by a solicitor under pressure of work. Whilst the merits of the appeal may be relevant, they are 'usually of little weight [since it] is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal' (Abdelghafar, paragraph [29]).
46. In this case, there was simply no sufficient explanation or excuse for the overrun. Mr Zinda knew that the time limits for appealing were strict (he had said so in his letter to the appeal tribunal of 6 October 2009). He was provided with all the information he needed by the Registrar's letter of 22 February 2010 in order to know how long he had in order to file his revised notice of appeal. The fact that he chose at some point, for a limited period, to disregard the rules to which he had been expressly referred and focus on the rules relating to national security is, on the face of it, extraordinary, but also irrelevant, for two reasons. First, because it was his responsibility to identify the right time limit and his mistake in this respect is no excuse justifying an extension of time; and second, because by 8 March he was anyway back on the right track and still had until 22 March 2010 to file the notice, a deadline of which he was aware. That was ample time in which to do the work and he could have done it if he had chosen to. It appears he chose to give preference to other matters. That was something he was entitled to do, but not something that he was entitled later to say justified an extension of his time for filing his appellant's notice.
47. The same points arise in relation to the allegedly wrong advice he received from Hillingdon. The receiving of wrong advice about time limits (if that is a fair construction of what happened, on which I say nothing) is also irrelevant. An appellant who, for example, entrusts to his solicitor the filing of a notice of appeal, which is then filed two weeks late because the solicitor misunderstood the time limit, would not ordinarily be entitled to an extension of time. In any event, as explained in the previous paragraph Mr Zinda was on track by 8 March. He urged upon me that he had lost significant time because of Hillingdon's advice. If so, he still however had sufficient time. He had already prepared two forms of notices of appeal and all he was doing now was trying so to re-formulate them as to identify an arguable error of law on the part of the employment tribunal. If there was any such error, he had had plenty of time to identify it and still had plenty of time to put it down in writing.
48. Judge McMullen was, therefore, in my judgment entitled to find and conclude that this was not an exceptional case in which an extension of time for filing the appellant's notice was justified. He was, in my judgment, also entitled to dispose of the appeal without considering the merits of Mr Zinda's proposed appeal. It is not usual to engage in a consideration of such merits in considering an extension application and there was no error of law by Judge McMullen in declining to do so. He was not assuming, let alone deciding, that the appeal had no merits. He was simply applying the usual practice that on extension applications it is not usually material to go into the merits of the underlying appeal. The critical question is whether there is a case for extending time. Subject only to the next matter, there is in my judgment no arguable basis for a challenge before this court to Judge McMullen's decision.
49. Complaint is made that Judge McMullen did not consider Mr Zinda's 'fresh evidence', the respondents' costs application. I have referred to an apparent inconsistency between paragraphs 24 and 26 of Judge McMullen's judgment, the former suggesting that he understood that Underhill J had seen that evidence, the latter indicating the contrary. Whatever the resolution of that, which I do not attempt to provide, the 'fresh evidence' point is of no materiality in relation to a proposed challenge to Judge McMullen's decision. The 'fresh evidence' had nothing to do with the fact that Mr Zinda was late with his fresh notice of appeal. It went at most to the merits of any appeal if time were to be extended, but Judge McMullen was, as I have said, entitled to deal with the application without considering such merits. I have already expressed my view that the 'fresh evidence' does not begin to make good the case for which Mr Zinda seeks to deploy it. But that consideration is irrelevant if Judge McMullen was not obliged to consider the merits at all.
50. I regard Mr Zinda's proposed appeal to the Court of Appeal against Judge McMullen's decision as having no prospect of success. I refuse his application for permission to appeal against it.

Subsequent events

51. On 6 August 2010 Mr Zinda made an application to the appeal tribunal asking Underhill J 'to re-consider my initial notice of appeal or to allow an extension of time to submit a fresh appeal on grounds of an unusual fresh evidence.' He referred to Underhill J's Rule 3(7) decision of 22 February 2010 as having relied 'heavily' on Judge Henry's response to the questions earlier directed to him by the appeal tribunal. He asserted that the respondents' subsequent costs application 'totally contradict' what Judge Henry had said in his letter of 7 January 2010. He said that Judge Henry's judgment of 15 January 2009 was 'passed … through malice and he is now adhering to it through malice.' He said:

'Under these circumstances, Mr Henry unlawfully barred my having access to redress through the appeal courts (EAT and possibly the Court of Appeal). This means, ipso facto, my initial Notice of Appeal was nil [sic] and void (i.e. it can be considered as if it has never taken place). It is for this reason that I am applying for my initial Notice of Appeal to be reconsidered by the EAT in light of this exceptional and unusual fresh evidence.'

52. The second sentence of that is, with respect, obscure. But the substance of what Mr Zinda was saying is clear. It was that the respondents' costs application, which post-dated Underhill J's Rule 3(7) decision, was fresh evidence that justified Underhill J reconsidering the original notice of appeal. He also asked for an extension of time to lodge a fresh notice of appeal on grounds of such fresh evidence. He added another paragraph, of which at least the second limb of the third sentence appears to be a non sequitur:

'In any event, I believe the EAT's judges to be astute enough to deal with this 'judicial imbroglio' and to stop this 'anathema to justice' spiralling out of hand. The gist of the matter is either I did give the reason why a neutral witness order was required or I did not. If I did, then my initial Notice of Appeal had a reasonable prospect of success and further action should have been taken; and if I did not, then the Respondents' cost application (which is to be heard on 17 August 2010 is utterly unacceptable. It is a total anathema to justice because the law cannot punish someone twice in completely related proceedings: first for not doing something and then, secondly, for doing what they have been accused and punished for not having done in the first place.'

53. Mr Zinda continued by explaining that the reason for his application to Underhill J was because, contrary to his expectations, Judge McMullen had on 29 July 2010 refused to admit the fresh evidence on the hearing of his appeal against the refusal to extend time for the filing of his Rule 3(8) notice of appeal.
54. On 12 August 2010 the employment tribunal, in light of Mr Zinda's continuing challenges in the appeal tribunal and (by then), so he hoped, also in the Court of Appeal, postponed the hearings then fixed for 17 August 2010. On 16 August 2010 the appeal tribunal notified him that Judge McMullen had ruled under Rule 3(7) that Mr Zinda's appeal lodged with the appeal tribunal on 23 July 2010 had no prospect of success (paragraph [31] above).
55. On 18 August 2010 the appeal tribunal notified him, in response to his application of 6 August 2010 to Underhill J, that '[s]ince these applications have already been determined by [Judge McMullen] at the hearing held on 29 July 2010, they will not be referred to the President for consideration. If you wish to pursue the matter then you may wish to do so at the Court of Appeal, if so advised.' On 23 August 2010 Mr Zinda responded, expressing extreme dissatisfaction with that disposal of his application, and said he was writing to appeal against it. He relied on Rule 33 of the Appeal Tribunal Rules 1993 as entitling him to ask for a review by Underhill J of his decision of 22 February 2010. He pointed out that his application of 6 August 2010 was such a review application and had nothing to do with anything determined by Judge McMullen. He developed that argument articulately and cogently.
56. The appeal tribunal's response on 1 September 2010 was that no review under Rule 33 was open in respect of a Rule 3(7) decision and that the only avenue that the disappointed appellant could follow was either under Rule 3(8) or Rule 3(10). Mr Zinda had adopted the former alternative but had done so late, and his appeal against the refusal of an extension of time had been refused by Judge McMullen, along with his application to adduce fresh evidence. The appeal tribunal therefore proposed to treat Mr Zinda's latest application as one for a Rule 33 review by Judge McMullen of his decision of 29 July 2010. Mr Zinda came back on 2 September 2010 pressing for his application for a review to be referred to Underhill J. On 8 September 2010 the Registrar ruled that, in relation to a Rule 3(7) direction, the provision for review under Rule 33 was superseded by the provisions of Rules 3(8) and 3(10), which provided a more generous time than the 14 days for applying for a Rule 33 review. Mr Zinda appealed against that ruling and asked for a hearing before a judge, preferably Underhill J. On 17 September 2010 the appeal tribunal notified him that his request by his letter of 8 September would be referred to a single judge as a Rule 21 appeal.

The decision of His Honour Judge Hand QC

57. Mr Zinda's appeal came before Judge Hand on 21 October 2010, who gave a reserved judgment dismissing it on 8 November 2010. Judge Hand, in paragraph 27, concluded that, once a Rule 3(7) determination has been made, there can be no further consideration of the same notice of appeal except by means of a Rule 3(10) hearing. In so concluding, he had not, however, ruled out the possibility of an application for a review of the original Rule 3(7) determination under Rule 33 of the Employment Appeal Tribunal Rules 1993. Such reviews have to be made within 14 days of the decision and so no appellant will ordinarily consider having recourse to Rule 33 even if, within that period, he considers he has a ground for a review. He will instead either exercise his right to serve a fresh notice of appeal under Rule 3(8), or else apply for a Rule 3(10) hearing: whichever he chooses to do, he has 28 days in which to do it.
58. In the present case, however, Mr Zinda's review application was based on something he only learnt after the 28 days had expired, namely the respondents' costs application, his claimed 'fresh evidence'. He did not know of that when he prepared and filed – two days late – his fresh notice of appeal. But he did know of it at the time of his appeal before Judge McMullen, who refused an extension and, in doing so, considered – justifiably in my view – that there was no need for him to consider the fresh evidence.
59. So what Mr Zinda then wanted to argue was that his fresh evidence was relevant to the way in which Underhill J had arrived at his Rule 3(7) decision and that he should now be entitled to an extension of time for asking for a Rule 33 review by Underhill J of that original decision. The essence of Judge Hand's decision was the Registrar had been right to regard the fresh evidence point as properly falling to be dealt with as part of the Rule 3(8) process that Mr Zinda had chosen to adopt and that it therefore fell to be dealt with by Judge McMullen; or, if any appeal against his decision was permitted, by the Court of Appeal. It was, however, an abuse of the process for Mr Zinda at the same time, and before the right to appeal to the Court of Appeal had been exhausted, also to attempt to invoke the Rule 33 review process.
60. I would put the position a little differently, although to the same effect. Following Underhill J's adverse Rule 3(7) decision, Mr Zinda had a choice between (i) asserting the soundness of the notice of appeal that was before Underhill J ('the original notice') at an oral hearing before a judge under Rule 3(10); or (ii) submitting a fresh notice of appeal within 28 days under Rule 3(8). Even if it had crossed his mind (which I suspect it did not) that there might be a third alternative of asking Underhill J to re-consider his Rule 3(7) decision by way of a review under Rule 33, the playing of that card rather than those available under Rules 3(8) and (10) would have exposed him to an absurd risk: namely, of having his review rejected as unfounded whether on the facts or as a matter of jurisdiction, and having fatally failed to take either of the options undoubtedly open to him under Rules 3(8) and (10). Unsurprisingly, he chose between those options and chose Rule 3(8).
61. Unfortunately for him, he failed to comply with Rule 3(8). He served his fresh notice of appeal late and failed to obtain an extension. Had he served it on time, who knows what would have happened? It might have received similar Rule 3(7) treatment, in which case the same process would have started again. Alternatively, the judge on the paper sift might have directed his appeal to proceed on one or more grounds to a full hearing. If the latter had happened (and I am not to be taken as saying that it would have done), his appeal would have been underway; and, as and when the 'fresh evidence' became available, he could, if so minded, have sought permission to amend his grounds or at least to rely on the fresh evidence in support of his appeal.
62. None of that, however, happened. Because of his own default, Mr Zinda's appeal was dismissed by Judge McMullen. It was open to him, if he could obtain permission, to challenge that decision in this court, he has sought to do so and I have refused him permission. It was not, however, then still open to him to invoke the fresh evidence as a ground for asking Underhill J to review his decision on the original notice. He had elected against seeking to maintain that notice under Rule 3(10) but to rely on a fresh notice under Rule 3(8). Having made that election, but having failed to produce a fresh notice in time, his appeal was properly dismissed. He could not then seek to re-open the original notice by way of a Rule 33 review. Underhill J's order of 22 February 2010 had been superseded by the dismissal of his appeal on 29 July 2010. Subject only to what he might hope to achieve in the Court of Appeal, that was the end of his appeal. It was not open to him to apply in a dismissed appeal for a review of an order made at an earlier stage in it.
63. Accordingly, I consider that Judge Hand's decision in dismissing Mr Zinda's further appeal was correct and that an appeal against it in the Court of Appeal would have no real prospect of success. If, however, I am wrong in that approach, or Judge Hand was wrong in his, I can still see no future in any such appeal except failure. Mr Zinda's review application was exclusively based on the proposition that his 'fresh evidence' would arguably cause Underhill J to re-consider the correctness of his Rule 3(7) decision on the original notice. For reasons given, that is a triumph of hope over reality. The fresh evidence does not begin to undermine the soundness of Underhill J's conclusion that the original notice did not merit Rule 3(7) treatment. Even if the Court of Appeal were to be persuaded that there was any technical merit in Mr Zinda's argument that he was in principle entitled to have Underhill J re-consider his Rule 3(7) order by way of a Rule 33 review, it is not going to make an order requiring any such review to take place when the material said to justify it is manifestly of a nature that can make no difference. The 'fresh evidence' cannot justify the claimed review and so an appeal would have no prospect of success.

Disposition

64. Mummery LJ, on the papers, more shortly than I have, refused permission to appeal against the orders made by Judge McMullen and Judge Hand. I agree with him and refuse permission to appeal against both orders.