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 Serota QC
Appeal No: UKEATPA/1396/12/DM

		Royal Courts of Justice Strand London, WC2A 2LL
		18 June 2014

1. LORD JUSTICE RIMER: The appellant is Temitope Ojikutu. She is a solicitor who was formerly employed as a senior housing lawyer by the respondent, the London Borough of Camden ("Camden"). The appellant was dismissed by Camden in March 2011. She then brought a number of claims against Camden in the employment tribunal for unfair dismissal, breach of contract, public interest disclosure detriment, and age, sex and race discrimination. Her claims were heard by the London Central Employment Tribunal (Judge Ms A Steward, Mr M Simon and Miss S.K. Sootarsing, "the ET") over some ten days in April 2012. The outcome that was that by a judgment sent with reasons to the parties on 18 July 2012, all the appellant's claims were dismissed.
2. By a notice of appeal to the Employment Appeal Tribunal ("the EAT"), filed with the EAT on 29 August 2012, the appellant sought to appeal against the ET's judgment on six grounds. They were directed at challenging the decision that the appellant had been fairly dismissed and the rejection of her race discrimination and victimisation claims, and included challenges to certain of the ET's findings of fact as being allegedly perverse.
3. The notice of appeal came before Underhill J (the President), as he then was, on the paper "sift". By a decision on the papers dated 25 October 2012, he ruled that none of the six grounds of appeal disclosed any reasonable ground for bringing the appeal. His ruling, in accordance with Rule 3(7) of the Employment Appeal Tribunal Rules 1993, was to the effect that no further action was to be taken on the appellant's notice of appeal.
4. The EAT's notice to the appellant informing her of Underhill J's decision drew her attention to Rules 3(8) and (10) of the 1993 rules. The latter entitled her, within 28 days of 25 October 2012, when the EAT's letter to was sent to her, to express to the EAT her dissatisfaction with Underhill J's reasons for his opinion, upon which event she would then have been entitled to an oral hearing before an EAT judge at which she would have had the opportunity to submit why, despite such adverse ruling on the papers, she ought nevertheless to be allowed to process her appeal to a full hearing on one or more grounds. The appellant did not take this course.
5. Rule 3(8), which, under the then applicable Rules, offered her an alternative course, provides materially as follows:

"Where notification has been given under paragraph (7), the appellant ... may serve a fresh notice of appeal ... within the time remaining under paragraph (3) ... or within 28 days from the date on which the notification given under paragraph (7) was sent to him, whichever is the longer period."

6. The appellant decided that she wished to serve a fresh notice of appeal as permitted by Rule 3(8). It is agreed that her time for doing so expired on 22 November 2012, being 28 days from 25 October 2012. The appellant, however, miscalculated the last day for filing her amended notice of appeal and wrongly calculated it as being 23 November 2012. She left it until that day to file her amended notice with the EAT. Her amended notice, which now included seven grounds of appeal, was dated 23 November 2012.
7. As she was out of time for filing her amended notice, the appellant promptly applied, by a letter also of 23 November 2012, under Rule 37 of the 1993 Rules for a extension of time, and asked that her application be dealt with as an interim application under Rule 20. Her letter said that her late filing of the amended notice was "the result of an arithmetical error, not intentional omission or a failure to inform myself of the time limits." She said that she had acted "in good faith, preparing all my documents for the appeal and did my best to comply with the time limits." She said she had applied for the extension of time "immediately on becoming aware of this error …." She also said that.

"I have been under considerable personal stress with work pressures and a family bereavement during the period of 28 days."

8. She said she did not believe that any prejudice would be caused to the respondent by the late filing of her notice and it is agreed that it would not. She asserted that her grounds of appeal raised significant issues and reminded the EAT of Rule 2A of the 1993 Rules, which provides that the overriding objective of the Rules is to enable the EAT to deal with cases justly.
9. The appellant's application came for consideration before the Registrar of the EAT, Ms P Donleavy, in Chambers on 21 December 2012, whose order of that date refused to extend the appellant's time, for reasons set out in an attachment to the order. After referring to various familiar authorities, the Registrar concluded that no exceptional reason had been shown why the amended notice of appeal could not have been presented in time and so there was no justification for giving an extension of time.
10. On 28 December 2012, the appellant gave notice of her wish to appeal against the Registrar's order, her grounds of appeal covering three single-spaced pages. She supported it by a witness statement she later made on 18 April 2013. Her appeal came on before His Honour Judge Serota, QC, sitting alone. She was represented by counsel, Mr Lemer, and Camden was represented by Ms Sunter of its solicitors, Sharpe Pritchard LLP. Judge Serota gave a very full 40-paragraph judgment explaining his reasons for refusing to extend time.
11. Anyone unfamiliar with the practice of the EAT might perhaps regard the refusal of an extension of time in a case in which the relevant filing was just one day late as ungenerous. It needs, however, to be borne in mind that the standard time for appealing to the EAT against judgments or orders of an employment tribunal is 42 days, which is an unusually generous period. Since it is so generous, the EAT has, for at least some 20 years, adopted a correspondingly strict practice in relation to applications by would-be appellants for yet more time in which to file their notices of appeal. Since, for obvious reasons, it will be only be in rare and exceptional cases that an appellant cannot file his or her notice in the very generous time allowed, in practice the granting of an extension of time for appealing is ordinarily only given in those rare and exceptional cases when the circumstances are sufficiently special to be regarded as justifying it. There is no doubt also that the like practice applies to the timing of the filing of an amended notice of appeal pursuant to Rule 3(8), which provides at least an additional 28 days in addition to the original 42 days.
12. The cases which establish this strict practice are now well-known. The starting point is the decision in United Arab Emirates v Abdelghafar [1995] ICR 65, a decision of Mummery J, as he then was, in his capacity as President of the EAT. I shall cite from paragraphs (2) and (3) of his judgment at page 71, in which he set out certain guidelines:

"(2) The appeal tribunal's discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the appeal tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the appeal tribunal or the industrial tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the appeal tribunal before the period has expired. Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.

(3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The appeal tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the appeal tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused …."

13. That approach was approved by this court in Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111; more recently, in Jurkowska v Hlmad Ltd [2008] ICR 841; and most recently in O'Cathail v Transport for London [2012] IRLR 1011.
14. Judge Serota was, of course, fully aware of the EAT's strict approach to the grant of extensions of time. Every case has, however, to be considered on its particular facts, and he reviewed the facts of the appellant's case very fully. He noted that she maintained that when she received the EAT's letter of 25 October 2012 she was suffering from considerable stress, and the letter added to it. The stress arose from pressure of work and the effect upon her of the death of an uncle in Lagos on about 18 October 2012. Her position was that, because of such stress, she failed to calculate the period correctly and was one day out. At some point, she checked the calculations, but said that she was still suffering from stress and made the same miscalculation. There is no dispute that the appellant was aware of the applicable time limit: she claims she simply miscalculated it.
15. Judge Serota reviewed the reasons the Registrar gave for refusing to extend time. Although what was before the judge was, in form, an appeal against that decision, he in fact heard oral evidence from the appellant, as seems to be a common practice in the EAT in such appeals and so the hearing before the judge was, in substance, a rehearing rather than a mere review of the Registrar's decision.
16. Judge Serota summarised the appellant's case as follows:

"17. The Claimant has always said that she was shocked by her bereavement, the loss of her uncle, and this, compounded with pressures of work and then the learning of the decision of Underhill J, had a significant effect on her. In her evidence she was asked whether, in view of her case as to, effectively, the disability she suffered as a result of these factors, she had seen a doctor. She said she did not need to see a doctor, she took two days off. She told me that she was a locum. She could not take longer absence or she would lose pay. She had a lot on her mind coping with her work, her uncle's death, her appeal and the funding of her daughter's university place. She was working (she never stopped working apart from those two days); she was not functioning as she wished. If she had had the grounds of appeal earlier, she would have filed them earlier had she realised that when she received them it was the last day. She had so much to process, including other cases, that she missed the deadline in her own case. I observe that some of this is not in her witness statement and was certainly not placed before the Registrar.

18. She told me that she had fixed the date she had originally calculated in her mind and she recalculated it at a later stage over a weekend but she still remained under the same pressure. I specifically asked her about this and she told me that when the recalculation took place, she remained under that pressure as when she had made her original miscalculation. She repeated this in answer to Mr Lemer.

19. She said that counsel did not respond and she did not check the date when the notice of appeal should have been lodged. She said:

"I received it on the Thursday, so I assumed Counsel knew that it was to be lodged the following day and I would have time to file it."

But counsel did not respond and she did not check. She received it on Thursday so she assumed counsel thought it was all right. She says she was trying to explain to me the effect of the bereavement on her ability to process things; she was not usually careless like this. There was no medical evidence placed before the Registrar or, indeed, before me, although she did say that during the course of the Employment Tribunal proceedings she had produced some medical evidence relating to past episodes of depression. She did not think she needed medical attention or that she needed to lodge medical evidence to show the effect of the bereavement and she had no reason to produce medical evidence. I would interpolate here, however, that as a solicitor the Claimant perhaps should have realised if she was going to put forward stress as a reason for not having complied with the time limits to lodge her Amended Notice of Appeal, she might well need to put forward some medical evidence to explain her non-compliance.

20. It was also said by the Claimant that she had spoken to counsel specifically asking counsel to advise her on time limits. This is not something that appears in her witness statement or in her letter to the Registrar and it is something that came out during the course of her evidence."

17. Judge Serota continued by saying that he had not really been addressed by counsel on the merits of the appellant's proposed appeal. He referred to the authorities to which I have referred and quoted material paragraphs from Abdelghafar and Jurkowska. He then came to his conclusion, which he expressed as follows:

"33. … I have not really spent any serious amount of time considering the fresh Notice of Appeal, although I am bound to say that it did not immediately strike me as having significant merit. I am not satisfied that the explanation I have been given by the Claimant is wholly convincing. I am unable to accept that the Claimant, as a senior experienced solicitor, was able to work in litigation without apparent difficulty, yet after the sad passing away of her uncle was unable to do the calculation or the recalculation correctly. She did not see a doctor and there is, therefore, no medical evidence before me. I have come to the conclusion that she is somewhat exaggerating the extent and effect of the various stressors to which she was subject.

34. She chose deliberately to leave the filing the Notice of Appeal until the last minute; that is always a high risk strategy. Although, of course, a Notice of Appeal is more complicated than a letter seeking a hearing, under rule 3(10), the filing of a Notice of Appeal was well within her capabilities and she could also have chased counsel. Her evidence that she had asked counsel to advice her at the time of it is neither in her witness statement nor in her letter to the Registrar and it is surprising if it was correct but had not been mentioned. I am not able to accept that evidence.

35. I consider that before allowing this appeal and extending time I must be satisfied that the case is one of those rare and exceptional cases where the Tribunal was satisfied that there was a reason which justifies departure from the time limits laid down in the rules. It will, no doubt, come as a great disappointment to the Claimant that I cannot pronounce myself so satisfied. I accept that what was said by Mummery J in Abdelghafar was a guideline but, at the same time, it is important that there should be a general practice in the Employment Appeal Tribunal in that there should be a uniformity of approach so that litigants are aware as to what approach is likely to be taken by the Employment Appeal Tribunal. It will only be in the exceptional case that the Employment Appeal Tribunal will exercise its discretion and grant further indulgence."

18. When this matter came before me on the oral hearing of the appellant's renewed application for permission to appeal, I expressed the view in my judgment that, subject to one point, there was no prospect of the full court on appeal holding that Judge Serota was in any way in error in that conclusion. I said then, and say again now, that he applied well-established principles to the facts as he found them. His assessment, in short, was that the appellant was exaggerating the effect of the stress to which she claimed to be subject on her ability to do her requisite calculations. She did not see a doctor and there was no medical evidence before the judge. She had not asked counsel to advise her about the time limit. She had deliberately left the filing of the notice of appeal to the last minute. It was, and I here use my own words, simply a case where her problem was created by her own carelessness, which is commonly the reason why notices of appeal are not filed in time, but is not the type of circumstance that will make the case of the rare exceptional type in which the court might fairly exercise its discretion to extend time. There was, I consider, no error of principle in the way in which Judge Serota directed himself and, therefore, no basis upon which his decision might be the subject of a successful appeal.
19. The only reason I did give permission to appeal was because of what happened later. Camden made an application to the EAT for an order that the appellant should pay the costs of her unsuccessful appeal to Judge Serota. That matter came before Judge Serota on the papers on 13 June 2013 when he made an order refusing the application, for written reasons which he attached. The reasons were as follows:

"(a) The Employment Appeal Tribunal is still essentially a no costs environment.

(b) At no stage until now has the Respondent suggested that the appeal was wholly without merit.

(c) I consider the Claimant's evidence to have been unreliable rather than dishonest.

(d) There were significant mitigating factors [including the state of her health] and the Claimant's delay in serving the Notice of Appeal was only 1 day.

(e) I did not consider that her appeal stood no reasonable ground of success and I dismissed it in the exercise of my discretion.

(f) I cannot say that the appeal was unnecessary, improper, vexatious or misconceived or that the Claimant had acted unreasonably in pursuing it."

20. In light of those reasons, in particular those in (d), I regarded it as arguable that there was some apparent inconsistency between the judge's reasons for dismissing the appeal and for refusing the costs application. And Mr Ohringer, who appears before us for the appellant, has submitted to us in support of the appeal that the judge's recognition in his costs reasons that there were "significant mitigating factors", including her state of health, and that her overrun was only by one day were factors that pointed towards allowing rather than dismissing the appeal against the refusal to extend time. Yet in his main judgment, the judge had placed no reliance on the fact that the overrun was a mere day and had rejected the case advanced by the appellant on health grounds. What is said by Mr Ohringer is that the judge's recognition in his costs reasons of the "significant mitigating factors" showed that, in nevertheless refusing in his main judgment to extend the appellant's time by the mere day that was required, the judge had set the bar too high. The submission to us was that we should regard Judge Serota's assessment of the appellant's case, as summarised in his costs reasons, as indicating that he ought, in fact, to have held that she had crossed the threshold for success on her application for an extension of time.
21. When giving permission, I warned the appellant that I was not giving her any solid hope that her appeal to us would succeed, and I have come to the conclusion that it should not. Whilst there is an arguable inconsistency between what Judge Serota said in his two sets of reasons, the judgment with which we are concerned is his substantive judgment refusing an extension of time. In my view, Judge Serota's reasons in his substantive judgment for his conclusion in that respect are unimpeachable and provide solid support for a decision that this court has no business to interfere with. That he later made the remarks he did in his costs reasons, which might perhaps be said to be in part inconsistent with his earlier findings, does not, in my view, in fact undermine those earlier findings. In fact, I do not accept that there is any inconsistency. In referring in his later reasons to there being "significant mitigating factors", including her health, he was no doubt recalling that it had been at the forefront of the appellant's case that she had been under stress at the material time. In his main judgment he did not, however, find that she had not been under any stress; he found merely that she had exaggerated the degree of stress to which she had been subject. As for his reference to the fact that the notice was only one day late, he was simply recognising that any would-be appellant who has overrun the deadline by such a short period is likely to hope, if not expect, that the tribunal will be merciful in extending time and that it was not unreasonable of the appellant to take the view that she should seek an extension.
22. In my judgment, nothing the judge said in his reasons on the costs application operated to undermine the prior reasons that he gave for dismissing the appeal on the extension of time application. There is no basis for challenging those reasons as doing than other than properly justifying the decision that Judge Serota made. I would dismiss the appeal.
23. LORD JUSTICE AIKENS: I agree.
24. SIR STANLEY BURNTON: I also agree.