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 Peter Clark (sitting alone)
UKEAT/0055/12/MAA

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/07/2013

Lord Justice Rimer :

Introduction

1. This is a renewed application for permission to appeal. The applicant is Robert Cunningham, who has appeared in person. The respondent is his former employer, Aurora Kendrick James Limited ('Aurora'). The order the applicant wishes to challenge is that of His Honour Judge Clark in the Employment Appeal Tribunal ('the EAT') made on 7 June 2012. Judge Clark thereby refused permission to Mr Cunningham to amend his notice of appeal and dismissed his appeal. His conclusion, in paragraph 10 of his judgment, was that Mr Cunningham's appeal was 'hopeless'. Mummery LJ, on the papers on 29 October 2012, refused permission to appeal, on the basis that there was no reasonably arguable error of law by either the employment tribunal ('the ET') or the EAT. Judge Clark and Mummery LJ have between them an accumulation of huge experience of employment law and their judgments command the highest respect. Mr Cunningham, however, is not prepared to take 'no' for an answer and has renewed his permission application orally.
2. Mr Cunningham, who is in his early 30s, is not merely disadvantaged in his conduct of these proceedings by the fact that he is not a lawyer. He is also physically disadvantaged in that he suffers, as he has since childhood, from a significant hearing disability. He also has other health disorders, and has explained that he has been diagnosed with severe post traumatic stress disorder, severe depression, severe irritable bowel syndrome and recurrent renal calculi. My instinct is that the last thing that he needs to add to all that is the trauma of the personal pursuit of litigation, but he has made a choice to do so, apparently also now convinced that he has suffered an injustice by the handling of his case by the tribunals below. I add also that the court was advised in advance of Mr Cunningham's particular needs and it made what I hope he regarded as reasonable adjustments to enable his presentation of his application to be as trouble free as possible.
3. The renewed application was originally listed before me on 17 January 2013. On the morning of the hearing, the court was informed that Mr Cunningham had been taken seriously ill in the night and he did not attend to present his case. I adjourned the hearing to a date to be fixed and it was re-fixed for 22 April 2013. On the morning of that day too, the court received a message that Mr Cunningham was too unwell to attend and present his application. I adjourned the hearing once more, this time making it clear that it was unlikely that any further adjournments would be granted, at any rate in the absence of supporting medical evidence. The adjourned hearing was re-fixed for 1 July 2013. This time Mr Cunningham was present, accompanied by his mother. It was, however, apparent that Mr Cunningham was in no position to present an argument to the court. He appeared to be too emotionally distressed to do so, and may also have been feeling too unwell. He asked me at the outset if his mother could instead address the court on his behalf and I permitted her to do so. What followed was not, however, very satisfactory. I formed the impression that Mrs Cunningham had not come prepared to address the court, and the presentation of Mr Cunningham's case developed into something of a double act, with son prompting mother and mother seeking guidance from son. At the end of the hour's hearing, I reserved my judgment so that I could put it into writing. There is quite a lot to say and I considered it would be easier for Mr Cunningham to receive a written judgment explaining my decision.
4. In a nutshell, Mr Cunningham's claim in the ET was struck out following his non-compliance with an 'unless order'. He claims that such striking out was wrong. Judge Clark could, however, identify no arguable basis on which it could be said that it was. His refusal to permit an amendment to Mr Cunningham's notice of appeal was in respect of a late bid by Mr Cunningham to challenge two earlier orders by which the ET had respectively varied the 'unless order' and affirmed it as varied. I must summarise the story.

The facts

5. Mr Cunningham filed his ET1 against Aurora with the Ashford ET on 24 October 2008. He had been employed by Aurora for two and a half years as a software engineer. He made various claims, including for disability discrimination and unfair constructive dismissal. Aurora defended them.
6. On 26 February 2009, Employment Judge Barry, after hearing counsel for both parties, made a case management order. It required Mr Cunningham by 26 March 2009 to provide further information about his disability claim and required Aurora by 9 April 2009 to indicate whether disability was still in issue. If it was, the further directions that the judge also made were to apply. They included, by paragraph 5, mutual disclosure by 23 April 2009; by paragraph 8, the preparation by each party of signed witness statements of each witness who was to give evidence personally, such paragraph containing guidance as to the form and content of the statements; and, by paragraph 9, the exchange of such statements on 3 September 2009. A pre-hearing review ('PHR') was listed for 17 September 2009 and the full merits hearing was fixed for three days starting on 14 December 2009. That order was sent, with reasons, to the parties on 5 March 2009.
7. On Mr Cunningham's application, the ET on 16 September 2009 postponed the PHR to 27 October 2009. On his further application, the ET on 23 October 2009 further postponed the PHR for an apparently indefinite period. On 26 October 2009, the ET stayed the proceedings 'for one month or further order' and asked Mr Cunningham's representative to 'inform the Tribunal of the current position by the 17 November 2009'. On 10 December 2009, the ET, by consent, vacated the merits hearing fixed for 14 to 16 December 2009 and stayed the proceedings until 1 February 2010, by when Mr Cunningham's solicitor was 'to confirm [Mr Cunningham's] fitness to participate in the proceedings'.
8. The next hearing was on 19 May 2010, before Employment Judge Hildebrand, when a further case management order was made. Both parties were again represented by counsel. The hearing had been fixed by the ET of its own motion in order to consider whether Mr Cunningham was actively pursuing his claim, and it was apparently to consider a strike out of his claim. It was, however, turned into a case management discussion held over the telephone with counsel. Mr Cunningham was then undergoing treatment that was unlikely to be completed before about 2 September 2010 and it was accepted that there could be no substantive merits hearing before then. The case was listed for a further case management discussion on 14 September 2010. It was expected that by then Mr Cunningham's representative would have instructions in respect of several listed matters, which were directed at clarifying his disability discrimination, constructive unfair dismissal and pension contribution claims and whether he was claiming for personal injury as a result of discriminatory treatment. The order was sent to the parties on 7 June 2010.
9. A further case management order was made at a hearing before Employment Judge Sage on 14 September 2010, one also attended by counsel for both parties. A medical report before the ET was to the effect that Mr Cunningham was neither fit to attend the ET nor to instruct solicitors; and an intended course of therapy had been deferred until the end of November 2010. A letter from Mr Cunningham to the ET was provided by the judge to counsel, and it reflected that he had understood the case management order earlier made by Judge Hildebrand on 19 May 2010 and had 'sought to correct that document'. Judge Sage's reasons record that this letter showed that Mr Cunningham was able to participate in the tribunal process. The judge's reasons for the orders she made reflect that there was a dispute as to whether certain of Mr Cunningham's medical conditions were disabilities within the meaning of the Disability Discrimination Act 1995, although there was no dispute that his hearing disorder was such a disability.
10. The outcome of the hearing was that the judge directed that the case be listed for a PHR to decide the sole issue of whether Mr Cunningham's medical conditions of irritable bowel syndrome and recurrent renal calculi were disabilities within the meaning of the DDA. The orders made on that hearing were: by paragraph 8.1, mutual disclosure by both parties by 10 March 2011; by paragraph 8.2, the preparation of a trial bundle limited to the disability issues by Mr Cunningham, and a supply of a copy of it to Aurora, by 17 March 2011; by paragraph 9, the preparation of signed witness statements of all proposed witnesses; and, by paragraph 11, their exchange on 24 March 2011. Paragraph 12 provided that, save with the permission of the ET, no witness could be called at the hearing in respect of whom a witness statement had not been served. A PHR was fixed for 31 March 2011. The order of 14 September was sent to the parties on 17 September 2010.
11. On what appears to have been her own motion, on 16 September 2010 Judge Sage ordered Mr Cunningham to provide by 17 March 2011 further information, under four specified heads directed at the clarification of his case.
12. It does not appear that a PHR took place on 31 March 2011. Judge Sage, on 1 April 2011 and of her own motion, made an 'unless order' requiring Mr Cunningham to provide by 23 April 2011 the four heads of information earlier ordered on 16 September 2010, failing which his claim would be struck out. That order was sent to the parties on the day it was made, and warned, in bold, that unless the order was complied with within the specified time, the claim would be struck out on the date of non-compliance. By a letter of 26 April 2011, the ET extended until 27 May 2011 the time for compliance.
13. The giving of that extension was recorded in the order that Employment Judge Druce made at a PHR held on 5 May 2011, at which Mr Cunningham was represented by his solicitor and at which Aurora again appeared by counsel. One matter dealt with was Aurora's application to have Mr Cunningham's claim dismissed on the grounds that he had failed to comply with the orders of 16 and 17 September 2010 and that a fair hearing was no longer possible. That application was dismissed, but Judge Druce did dismiss part of Mr Cunningham's claims as having no reasonable prospect of success. He confirmed that the 'unless order' of 1 April 2011, as varied on 26 April 2011, remained in force. The order provided that the case management order sent to the parties on 5 March 2009 also remained in force, although it amended the dates for compliance with it. Thus: disclosure was to be by 10 June 2011; Mr Cunningham was by 10 June 2011 to provide a statement of his loss under five specified heads; he was to supply a bundle to Aurora by 15 August 2011; witness statements were to be exchanged by 23 August 2011; and by 10 June 2011, Mr Cunningham was to serve a schedule of loss. A merits hearing on liability alone was listed for four consecutive days commencing on 20 September 2011. The order provided that no postponement of that hearing date 'will be granted unless there are exceptional unforeseen circumstances'.
14. At some stage after that hearing, Mr Cunningham ceased to be professionally represented and his mother became his representative. There followed disputes between the parties, reflected in correspondence (between Brachers for Aurora and Mrs Cunningham for her son), as to whether the other party had or had not complied with the ET's directions.
15. On 19 September 2011, the day before the four-day substantive hearing, Mrs Cunningham telephoned the ET at 1.30 pm to say that she would be unable to attend the hearing on the following day because she would be in hospital and that there was medical evidence that Mr Cunningham could not attend on his own. She followed that up with an e-mail to the ET at 11.58 pm by which she made representations as to the allegedly inadequate disclosure by Aurora. On the morning of 20 September, she e-mailed the ET again, formally asking for a postponement on the ground that she was unwell and was going to hospital shortly 'as an urgency referral' and that for her son to attend the hearing without the support of a known person might 'push him over the edge.' By an e-mail timed at 9.31 am, she submitted an application (one covering some 12 single-spaced pages, said to have been commenced on 26 August 2011 but only completed on 19 September 2011) asking for wide-ranging disclosure and information from Aurora under many heads, the application being said to be 'for the purposes of disclosure, of preparation of trial bundles of documents and of witness statements with subsequent simultaneous exchange of witness statements'. There was no attendance by or on behalf of Mr Cunningham at the hearing on 20 September 2011.
16. The result of that turn of events was that, at the commencement of the hearing, Aurora's counsel asked for Mr Cunningham's claim to be struck out or dismissed, or for the hearing to continue in his absence. The ET (Employment Judge Pritchard and members) refused that application. They also refused Mr Cunningham's e-mailed application for further disclosure and information, explaining in their reasons that they were satisfied that Aurora had complied with its disclosure obligations. They did, however, agree to postpone the hearing, which they indicated would be held during a window between 17 January and 30 June 2012. They were, however, also of the view that Mr Cunningham had not complied with his obligations under previous orders and they proposed to make an 'unless order' against him. They explained that, if that it was not complied with, 'his Claim will be struck out'.
17. This was all set out in the ET's reasons sent to the parties on 22 September 2011, together with the 'unless order' dated 21 September 2011. That required Mr Cunningham by 4.00 pm on 4 October 2011: by paragraph 1, to provide information under three specified heads; and by paragraph 2, to serve his witness statements in accordance with the guidance as to their form and content set out in paragraph 8 of the case management order sent to the parties on 5 March 2009. The order explained, in bold, that if it was not complied with within the specified time, Mr Cunningham's claim 'will be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a pre-hearing review or Hearing.' The order, and the Notes to it, also explained that Mr Cunningham could make an application under rules 10(4), 11 or 12 of the Employment Tribunals Rules of Procedure for the order to be varied or revoked.
18. The order was duly received by Mr Cunningham. On 26 September, Mrs Cunningham asked the ET whether it had been issued on the application of counsel for Aurora or after he had made representations about it. The ET responded on 28 September, saying that the order was made by the ET at the hearing on 20 September and that the Reasons attached to it made this clear. It added that 'The Unless Order stands'. Although Mr Cunningham is critical both of (i) the ET's dismissal of the disclosure application, and (ii) its 'unless order', he did not seek to appeal to the EAT against either order. The time for presenting any such appeal expired in early November 2011.
19. At this point, Simon Jeffreys, of the Tunbridge Wells and District Citizens Advice Bureaux, came on the scene for Mr Cunningham. He e-mailed the ET and Brachers on 29 September asserting that the ET had been in error in concluding that Mr Cunningham had not already complied with two of the three requirements of paragraph 1 of the 'unless order'. He said that this represented a serious mistake, requiring 'the matter to be fully re-considered and for the unless order to be revoked in the meantime or at least to be set aside pending a fresh hearing.' On the following day, he e-mailed the ET further to say that the information the subject of the third head of paragraph 1 of the 'unless order' had been provided by Mr Cunningham on 6 October 2010. Brachers responded to the ET on 30 September by a long e-mail of which the essence was that: (a) Mr Jeffreys was correct as to Mr Cunningham having previously complied with the three heads of paragraph 1 of the 'unless order', but (b) that Mr Cunningham had never complied with his witness statement obligation, the subject of paragraph 2 of the order, and (c) justice required the order to remain in place, for reasons they developed. Although Mr Jeffreys' request to the ET was not made by way of a formal application, its substance was that he was asking the ET to review its decision to make the 'unless order', which was a step that was open to Mr Cunningham.
20. The result of those e-mails was that on 3 October Judge Pritchard revoked paragraph 1 of the 'unless order' but stated that paragraph 2 'stands save that the date for compliance is extended to 11 October 2011'. Mr Cunningham had, therefore, to serve his witness statements by then or else his claim would be struck out. Mr Jeffreys' reaction, on 4 October, was that 'As of now, I consider that my application to set aside the entire Unless Order of 21 September still stands.' I do not understand why he thought that. His application had resulted in the revocation of paragraph 1 of the order, but paragraph 2 was expressly left in place. He was not entitled to consider that the ET regarded there to be an extant application for the setting aside also of paragraph 2: on the contrary, the ET had made it clear that paragraph 2 remained in place and that time for compliance with it was still running. That was also Brachers' understanding, as reflected in their e-mail to the ET of 6 October.
21. In the meantime, on 5 October Mr Jeffreys had e-mailed the ET to say that Mr Cunningham had not prepared any witness statements and that there was no prospect of his doing so within the next seven days. He said that Mr Cunningham had been too ill to do so in 2010 but Mr Jeffreys did not explain why they were not produced in 2011. On 7 October, the ET e-mailed both sides to say that Judge Pritchard, having read the e-mails, confirmed that the 'unless order', as varied by the revocation of paragraph 1, still stood. On 12 October, Mr Jefferys e-mailed Brachers explaining, inter alia, that he was instructed to prepare an appeal once he had received the ET's order striking out of Mr Cunningham's case pursuant to the 'unless order'. That shows that Mr Cunningham was under no illusion that, at that stage, a strike out was likely. It is further relevant to note that insofar as Mr Cunningham complains that the ET was wrong in failing to respond to Mr Jeffreys' review application by setting aside the 'unless order' in its entirety, he did not seek to appeal against the ET's decision in that respect. Time for presenting any such appeal expired in November 2011.
22. By a judgment signed on 14 October 2011 and sent with reasons to the parties on 25 October, Judge Pritchard struck Mr Cunningham's claim out on the ground that he had failed to comply with the 'unless order' of 21 September as varied on 3 October. Mr Cunningham did seek to appeal against the strike out judgment, presenting his notice of appeal to the EAT on 1 December 2011.
23. Mr Cunningham's appeal was heard by Judge Clark, sitting alone, on 7 June 2012. He was represented by counsel, Ms Carse, instructed by Mr Jeffreys. Aurora was also represented by counsel.
24. Judge Clark summarised the history rather more succinctly than I have and referred to rule 13(2) of the Employment Tribunals Rules of Procedure, which provides:

'(2) An order may also provide that unless the order is complied with the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or hearing.'

25. Judge Clark's view was that a judge had no discretion not to strike out a claim or response in consequence of a non-compliance with an 'unless order' but that such a strike out order was reviewable by an ET (and I presume he meant by an application under rule 11(1)), or may be revisited under rule 10(2) (and I presume he had I mind rule 10(2)(n)), and he said that 'there is no doubt that on application or of its own motion the Tribunal may consider granting relief from sanction'. He referred to five cases in which that had happened. He said that 'What all these cases have in common is that in each there was an automatic strike-out under rule 13(2) followed by an application for relief from sanction'.
26. He then pointed out that Mr Cunningham had made no application to the ET for relief from sanction, but that the substance of what Ms Carse was seeking on the appeal was relief from the sanction imposed by the strike out, although the appeal before him was 'only against an automatic strike-out order under rule 13(2)'. He said that raised the question of whether it was open to him to grant such relief either (i) by allowing the appeal and granting relief from sanction himself, or (ii) remitting the case to the ET for that tribunal to consider granting relief from sanction.
27. Before dealing further with that, he referred to Ms Carse's application to amend the notice of appeal so as to challenge 'in particular, Judge Pritchard's orders of 3 and 7 October, which collectively refused to revoke the unless order of 22 September.' Judge Clark's view was that there was no good excuse for not appealing those orders in time. He referred to well-known authorities as to the strictness with which the EAT requires appeals against judgments of an ET to be brought within the period of 42 days prescribed by the Employment Appeal Tribunal Rules 1993, as amended: namely, United Arab Emirates v. Abdelghafar [1995] ICR 65, Aziz v. Bethnal Green City Challenge Co Ltd [2000] IRLR 111, and Jurkowska v. Hlmad Ltd [2008] ICR 841. The point was made that Mr Jefferys had needed time to take on the complexities of the case, but Judge Clark was also shown the e-mail correspondence in late September and early October 2011 to which I have referred, and in particular Mr Jeffreys' e-mail of 12 October in which he said that he had been 'instructed to prepare an appeal once I receive the Tribunal's orders striking out the Claimant's case pursuant to the unless order,' and that is what was done. Judge Clark did not say so expressly, but the implication of what he said was that there was no good reason why, if so advised, Mr Cunningham could not have appealed against the other orders but he did not. Judge Clark concluded his judgment by saying:

'In these circumstances, it seems to me that the appeal is hopeless as against the Judgment of 25 October. There was no discretion at that point in the process; the Judge was bound to enter Judgment, because it is common ground that paragraph 2 of the unless order requiring the Claimant to file a witness statement was not complied with within the extended timescale. In these circumstances, I see no alternative but to dismiss this appeal.'

The proposed appeal

28. The grounds of appeal are that Judge Clark's order was wrong and unjust because of procedural or other irregularity and that Mr Cunningham's appeal should have been allowed since the administration of justice required it.
29. Mr Cunningham developed those arguments in a 13-page written argument, and the heart of the points he made was repeated in his mother's oral address. He pointed out the severe physical disadvantages with which he has had to cope and submitted that his ability to comply with ET directions has been and is dependent upon, and dictated by, others and by events beyond his own control. He referred to the long period when he was awaiting trauma focussed therapy, saying that 'compliance with such [ET directions] could be achieved only through receiving NHS treatment, the timing of which is under the control of only NHS management and therefore totally out of my control'. The delay in the prosecution of his claim had, he said, been through no fault of his own, as Judge Druce had confirmed (a reference to what Judge Druce had said at the hearing on 5 May 2011), although Judge Druce had also affirmed the maintenance in place of an 'unless order' and made further directions, including for the exchange of witness statements with which Mr Cunningham did not comply. Mr Cunningham asserted that he had 'complied with all Tribunals orders and directions.' That, with respect, is incorrect. He has not provided any witness statements and did not comply with the 'unless order', as varied.
30. Mr Cunningham asserted that the making of the 'unless order' by Judge Pritchard 'was entirely inappropriate and unjust as would have been apparent to [Judge Pritchard] had he referred to documentation before him that day and on the Tribunal file'. Mrs Cunningham emphasised the same point. I regard it as probable that Judge Pritchard was fully aware of the, frankly, lamentable procedural progress of Mr Cunningham's case and I am not persuaded that, in such circumstances, it is arguable that the making of the 'unless order' was not an appropriate order for him to make. If, however, as Mr Cunningham claims, the making of that order was so obviously wrong (including on the ground that it was made in his absence and so in circumstances in which he was unable to make submissions about it), he could have sought to appeal against it to the EAT, whereas he did not.
31. He did of course, by Mr Jeffreys, seek to have it varied or revoked, and achieved partial success. To the extent, however, that Mr Jeffreys' review application did not achieve total success, Mr Cunningham could also have sought to appeal against the ET's orders of 3 and 7 October 2011 refusing to revoke the 'unless order' in its entirety. Again, he did not do that either. Alternatively, he could have made an application to the ET for relief against the sanction imposed by the subsequent strike out judgement. Again, he did not do so.
32. Mr Cunningham twice in his submissions made the point that Judge Pritchard's order 'was not one of automatic strike out: the Order in its entirety states otherwise' and the thrust of his point was apparently that the order contemplated a further decision making process before a strike out order was actually made. I do not understand that. The order spelt out in bold that if it was not complied with, the claim would be struck out 'on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a pre-hearing review or Hearing.' That made the position crystal clear. The order also advised of Mr Cunningham's right to apply to have it varied or revoked, and he did so, with partial success. Subject to the outcome of any such application, it would, however, take effect according to its terms. Mr Cunningham cannot have been in any doubt about that.
33. Mr Cunningham said that the four requirements of the 'unless order' were also each dependent upon the actions of a third party, 'for example provision of treatment by the NHS and compliance by [Aurora] with an [ET] Order against it for disclosure of documents.' Having made the point, he may perhaps have illustrated its error by pointing out that he had already complied with the first three requirements of the order, as Mr Jeffreys had explained on his behalf, and that led to the revocation of paragraph 1 of the 'unless order'. The suggestion that he could not produce witness statements until there had been full disclosure by Aurora is, I consider, also wrong. It is true that, under the order made following the hearing of 5 May 2011, disclosure was to precede the exchange of witness statements. Under the prescribed timetable, disclosure was due by 10 June 2011 and the provision by Aurora of its documents by 24 June 2011. I do not myself understand, however, why this order of the prescribed events prevented Mr Cunningham from producing witness statements of himself and any supporting witnesses. His assertion to the contrary perhaps reflects a misunderstanding of the purpose of witness statements, which is to set out the witness's own evidence as to the relevant facts and matters. It is not the purpose of witness statements to describe documents produced by other parties, which can ordinarily be put in evidence and speak for themselves.
34. But even if, as he claims, Mr Cunningham considered that Aurora's disclosure was so inadequate as, for some reason, to prevent him from preparing any witness statements at all, his remedy was to apply as a matter of urgency to the ET for an order for the requisite specific disclosure and to seek a consequential extension of time for the exchange of witness statements. He did not do that, and no extension of time for the exchange of witness statements was sought or granted by the ET following the order made on the hearing of 5 May 2011. Meanwhile a four-day trial starting on 20 September 2011 was getting ever closer. It appears to have been Mr Cunningham's stance that so long as he was asserting that Aurora's disclosure had been inadequate, he could not and need not do anything towards producing any witness statements. The preparation of the disclosure application that he eventually made on 20 September 2011 was apparently commenced on 19 August 2011. It ought to have been obvious to him that he could not safely defer its making until the morning of the first day of a four-day hearing. That was a course of action that would be likely to derail the trial.
35. Mr Cunningham also makes the point that the strike out order was accompanied by a letter that advised him of his right to apply to the ET to review the decision and of the appeal process to the EAT, and enclosed an explanatory booklet. The letter explained that both options were subject to strict time limits. The point of the letter and booklet was and is to help litigants in person to understand their rights. Mr Cunningham chose not to apply to the ET to review the strike out, although he could have done. He chose instead simply to seek to appeal against it to the EAT. The booklet does not warrant that either a review or an appeal will succeed. It simply explains the options. Mr Cunningham asserts that, in the circumstances, a review was inappropriate, and that an appeal was the only proper course open to him.
36. With respect, that may perhaps have reflected the making of the wrong judgment. It may perhaps have been open to the ET, upon a review, to consider whether, in all the circumstances of the case, the making of the 'unless order' had in fact been appropriate, although whether it was so open is a matter on which I express no final view. But on an appeal, I cannot see that the EAT would have jurisdiction to do anything more than to identify whether there was any error of law in the ET's giving automatic effect to the consequences of the non-compliance with the prior order. That was Judge Clark's view. I agree with him, and that is why he dealt with the appeal as summarily as he did. He had no jurisdiction to engage in a consideration of the merits of the making of the original order. That was not the subject of any appeal before him, although it could have been if Mr Cunningham had appealed against any of the relevant prior orders.
37. Mr Cunningham said that, if his appeal to the EAT was 'made on an unacceptable that is incorrect basis', he does not understand why it was accepted and processed through to a full hearing. I find that argument depressing. If he had not been allowed to pursue his appeal to a full hearing, he would no doubt have exhausted every avenue with a view to achieving a right of appeal: first, by seeking a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993; and, if that failed, by seeking permission to appeal to the Court of Appeal against that adverse ruling. As it is, he was allowed to pursue his appeal to a full hearing but now, in effect, complains that it was unfair that it did not succeed. I do not know why his appeal was allowed to proceed to a full hearing. It may be that the President, Langstaff J, considered that it raised an arguable point, or that he at least considered that it might do so. In the event, Judge Clark held that it did not. I cannot see what, in principle, is wrong with that outcome. Mr Cunningham wanted to appeal, he was allowed to, he had his day in court, he advanced such arguments as he had and the result was that he lost. It is usual in litigation for one side to lose and on this occasion it was Mr Cunningham. The appellate system he invoked before the EAT worked properly and fairly.
38. Mr Cunningham's perception is, of course, that it did not. The problem, however, with all his arguments is that they are directed at challenging the wrong order. His real complaint is about the making of the 'unless order' in the first place and the subsequent refusal to revoke it. He has, however, never appealed against the 'unless order', either in its original form or as varied, and Judge Clark was plainly right to refuse his out of time application to appeal the orders of 3 and 7 October 2011. The authorities to which he referred show how strictly the time limits for appealing ET orders are applied by the EAT, and there was no excuse for Mr Cunningham's failure to appeal against the earlier orders in proper time. That may have been a mistake on his part, but Judge Clark's refusal to regard the case as one that merited the granting of an extension of time to appeal the earlier orders cannot be regarded as having been wrong, or even arguably wrong: it would have been quite contrary to well-established principles to have allowed Mr Cunningham to amend his notice of appeal so as to extend his appeal to a challenge to the earlier orders. Those principles apply as much to those who, by choice or force of circumstance, choose to act in person as to those represented by lawyers.
39. Whilst I recognise that Mr Cunningham considers that justice was not done by the EAT, Judge Clark made in my view no error of law in dismissing his appeal. For reasons given, it was not for him to review the merits of either (i) the original 'unless order', or (ii) the orders of 3 and 7 October 2011, against none of which was any appeal before him. He was concerned only to consider whether Judge Pritchard's strike out order in consequence of Mr Cunningham's non-compliance with the varied 'unless order' was wrong in law. He could find no such error. Nor can I. I would endorse Mummery LJ's view that an appeal to the Court of Appeal has no real prospect of success. In the circumstances I have related, I refuse permission to appeal.