England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE McMULLEN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th June 2011

Lord Justice Richards:

1. Ms Miller makes a renewed application for permission to appeal against a decision of HHJ McMullen QC in the Employment Appeal Tribunal by which he dismissed her appeal against the order of the Registrar refusing her application for an extension of time in which to lodge a notice of appeal to the Employment Appeal Tribunal. Ms Miller appears in person but very helpfully has prepared a written submission for the purposes of today's hearing, which I allowed to be read to the court by Mr Masamba, her McKenzie Friend.
2. The background of the application is that following an investigation into suspected benefit fraud Ms Miller, who I will refer to as the applicant, was summarily dismissed by her employer, the respondent to these proceedings, for gross misconduct. She brought a claim in the employment tribunal for unfair dismissal, victimisation and unlawful deduction of wages. In the course of the tribunal proceedings an award of costs in a sum of over £9000 was made against her by an employment judge. The proceedings culminated in a tribunal decision dated 19 May 2010 dismissing her various claims and refusing to vary the costs order. There was a 42 day time limit expiring at 4pm on 30 June for lodging a notice of appeal against that decision.
3. The applicant did not, however, lodge her notice of appeal until after the expiry of that time limit; she lodged an incomplete notice on 1 July and a notice in proper form with the requisite supporting documentation on 2 July. She applied for an extension of time for lodging the notice. The Registrar gave a reasoned written decision refusing the application. In a judgment dated 17 December 2010 HHJ McMullen dismissed an appeal against that refusal. His judgment or related order is the matter against which the applicant now seeks permission to appeal to this court.
4. HHJ McMullen's decision followed a hearing at which the applicant was represented by counsel, and she herself gave oral evidence upon which she was cross-examined. In his judgment the judge referred to the legal authorities dealing with the principles that govern an application for an extension of time; those authorities show the importance attached to the time limit for the lodging of appeals to the Employment Appeal Tribunal and the need for exceptional circumstances to justify an exercise of discretion to extend time. The judge was not persuaded that there was anything in the case of a sufficiently exceptional nature to justify an exercise of discretion in the applicant's favour. In reaching that conclusion he looked carefully at the explanation given by the applicant for her failure to comply with the time limit. She had explained that until 24 June she was in the hands of the solicitor who had acted for her in the previous proceedings and about whose conduct she complained. The judge invited her to focus therefore on the period following the meeting with the solicitor on 24 June when it was clear that she was taking the papers from him. She had in fact received a week earlier than that a form of notice of appeal drafted by the solicitor. She said that during the six days from the time when she was acting in person she attempted with the assistance of a friend to put together the notice of appeal in the form in which it was finally lodged, building, as I understand it, on the draft that had been received from the solicitor. The burden of her evidence was that she took this amount of time because of her dyslexia, which affected her in various ways. She gave oral evidence about her condition and the judge was also taken by her counsel to medical assessments concerning the condition. He accepted that her dyslexia affected not simply her ability to deal with words but also her organisational skills. He did not accept, however, that it provided a sufficient explanation of the delay in lodging the notice of appeal. He referred to the fact that she was an experienced litigator who knew the deadlines and what was required. She had given evidence about attending the solicitor's office on 30 June to obtain further documents, when she was kept waiting until the afternoon by the solicitor. In relation to that evidence the judge said that these were not essential documents for the purpose of lodging a valid notice of appeal and by 3.30pm on that day she was in a position from her solicitor's office to lodge the notice but did not do so, and there was no explanation as to why that date had slipped away.
5. The judge went on to make a number of general comments about the number of cases where litigants fail to lodge the basic documents required, a very high proportion involving litigants who had taken no step until day 42. To leave it till the last moment was a high risk strategy; far too much time and expense was taken up with those who did not read the rules and with unmeritorious appeals for more time. The judge observed finally that the case had no substantive merit and there was no point in breathing life into a case which was bound to fail.
6. In her challenge to the judge's decision the applicant does not contend that the judge erred in the principles of law that he applied. In detailed submissions, as contained in the papers already before the court and as underlined and amplified in the argument that has been put before me today, she has described and placed great weight on the effects of her dyslexia and she has explained in some detail the process that led to her lodging the notice of appeal out of time, including the chronology of her dealings with her solicitor in June 2010.
7. I have every sympathy with her for the problems she suffers by reason of her dyslexia, and indeed for what she says about the emotional stress and other problems she has suffered as a result of the prolonged litigation to which she has been party. She faces, however, the serious difficulty that HHJ McMullen plainly had regard to her dyslexia, about which he had received written and oral evidence, and in the light of everything he had heard he decided that her account of the last few days, when she had taken the papers away from the solicitor and was acting for herself, did not provide a satisfactory or sufficient explanation for the delay and did not provide an exceptional reason for an extension of time. This was a judgment for the judge to make in the exercise of his discretion whether to extend time or not and a judgment for him to make in the light of the evidence he had seen and heard. In order to interfere with a decision of that kind the court would have to be satisfied that the decision fell outside the scope of the judge's discretion, which in effect requires the court to be satisfied that it was a perverse or unreasonable decision on the judge's part.
8. In his written reasons for refusing permission to appeal Sir David Keene said this:

"The EAT judge, like the Registrar, applied the appropriate principles in exercising of his discretion as to whether to extend time. He was entitled to conclude that no good reason for an extension had been shown. He patently took account of the applicant's dyslexia (see para 7 of the judgment). The time taken by the applicant's solicitors provided no good excuse for the reasons given by the judge and the Registrar, especially bearing in mind the applicant's experience of ET and EAT procedures. There is no realistic prospect of showing that the decision fell outside the scope of the discretion vested in the judge."

9. I agree with those observations. Despite the submissions to the contrary addressed to me, I am satisfied that an appeal against this exercise of discretion on the part of the judge has no realistic prospect of success, nor is there any other compelling reason why an appeal should be heard. Despite Ms Miller's pleas, therefore, I must refuse the renewed application for permission.

Order: Application refused