England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2A 2LL
		9 July 2014

...

LORD JUSTICE VOS:

Introduction

1. This is the renewed oral application for permission to appeal against the order made by the Employment Appeal Tribunal on 3 June 2014, now more than a year ago, whereby it refused the Appellant an extension of time to a file an appellant's notice in respect of the Employment Tribunal's decision which was made on 2 October 2013, now more than 20 months ago.
2. The background is pretty straightforward. The Appellant was employed by the Respondent as a security guard for 2 years until May 2012. He brought Employment Tribunal proceedings for, amongst other things, unfair dismissal, direct racial discrimination and harassment and non-payment of compensation.
3. Certain agreement was reached between the parties prior to the lengthy Employment Tribunal hearing, but the substantive claims were ultimately dismissed in the Tribunal's decision to which I have already referred, dated 2 October 2013.
4. The Rules allow the Appellant 42 days to file his appellant's notice with the Employment Appeal Tribunal. That period expired, as the judge in the Employment Appeal Tribunal ultimately found, on 13 November 2013.
5. The Appellant tried unsuccessfully to e-mail his appellant's notice on 14 November at 13.30. The notice was successfully filed late on 14 November after the office had closed at 1600 hours, meaning that the Employment Appeal Tribunal accepted the appellants' notice as having been filed on the business day of 15 November 2013, which was 2 days out of time according to the finding of the Employment Appeal Tribunal.
6. On 31 January 2014 the Appellant's application for an extension of time was refused by the registrar of the Employment Appeal Tribunal.
7. On 3 June 2014 the matter came before His Honour Judge David Richardson sitting in the Employment Appeal Tribunal who dismissed the Appellant's appeal against the registrar's refusal to extend time.
8. On 23 October 2014 Lewison LJ considered the application for permission to appeal to the Court of Appeal against the EAT's decision on paper. Lewison LJ refused the Appellant's application for permission to appeal, saying that no question of law had been identified on which it was said that the EAT had gone wrong, bearing in mind that an appeal to the EAT lies only on a question of law and there were no grounds for thinking that the judge exercised his discretion on the wrong principles. The best that could be said for the Appellant was that some judges might have exercised the discretion differently.
9. On 10 March 2015 the Appellant's renewed oral application was due to come on before the court for a half hour application in the usual way. The Appellant e-mailed the office the day before seeking an adjournment. That adjournment was duly granted.
10. The Appellant has then made three applications to me over the last three days to adjourn the application again today. I refused on the basis that the grounds of the adjournment application, namely the Appellant's health, had not been vouched by a medical certificate stating that he was unfit to attend court in order to argue his application for permission to appeal during a 30-minute hearing.
11. Despite the train strike and the fact that the Appellant has presented a sick note from his doctor saying that he is unfit to work but not saying anything about whether he is fit to attend court, the Appellant has attended this afternoon before me. I actually adjourned the matter from 10 o'clock this morning to 3.00 pm this afternoon to enable the Appellant to attend, making it perfectly clear that the application had to go ahead.
12. It needs clearly to be understood by litigants in person that there are a large number of people seeking the attention of the Court of Appeal and business is pressing. It is not possible simply to come along and demand endless adjournments of applications. The business of the court must be dealt with. That is a question of justice. That is a question of the overriding objective. The Rules require that applications are made and promptly dealt with and litigants must co-operate with the court in that activity.
13. Mr Rehman has attended before me today only to make submissions that he is too ill to progress his application. He has produced a document written, as it appears, by him recording that he has asked his doctor for a medical certificate to say that he is too ill to present his case and that such a certificate will be provided once payment has been made within a period of two weeks. There is no evidence that a payment has been provided, and that period of two weeks will be long after this application has been concluded.
14. The fact of the matter is that Mr Rehman is well enough to attend and has been able to make coherent submissions about his request for an adjournment on health grounds, but chose resolutely not to respond to the questions that I repeatedly asked him about what submissions he wished to make in support of his application for permission to appeal.
15. Fortunately for Mr Rehman, his submissions have been provided in writing and I have had the opportunity of reading the entirety of the file that he has put before the court. I will come in a moment to the grounds of appeal upon which he relies in order to seek permission to appeal from the decision of the Employment Appeal Tribunal.
16. I would, however, like to reiterate that it is not open to litigants, whether in person or otherwise, to dictate to the court that adjournments must be granted because the litigant is feeling unwell. It is only when a doctor certifies that the litigant is physically or mentally unable to present the case due to disability or due to his circumstances that the court will grant an adjournment and even then, an adjournment cannot be granted for unlimited time.
17. There is in this case no reasonable ground for thinking that Mr Rehman will be any better able to present his case next week, next month or even next year. He has unfortunately suffered from certain health problems apparently since the events that gave rise to this application. It is simply not possible for this court to adjourn applications endlessly. As I say, that is not justice to anyone, including the Appellant himself.
18. I will, however, do my level best to deal properly and justly will all the points that the Appellant has made in writing before I decide whether or not it is appropriate to grant him permission to appeal on the renewed oral application. First, I need to consider the decision that the Employment Appeal Tribunal itself made.

The EAT's decision

19. The EAT gave a comprehensive judgment. It explained that there is, in the Employment Appeal Tribunal, an extremely generous 42 day time limit, but as a matter of law compliance with that limit is expected to be fulfilled. Extensions are not readily granted under rule 3(3)(a)(i) of the Rules and when an application is made for an extension of time, a full and honest explanation for the delay and a good excuse is required.
20. The judge in the EAT then went into the facts of this case in great detail. He explained that on 14 November 2013 the Appellant wrote to the EAT saying that time had expired that day. In fact, the Appellant had also written applying for an extension of time back on 12 November 2013, to which by the 14th he had not had a response. The response came later on 14 November saying that the EAT could not extend time and therefore he would have to make his application.
21. The Appellant, according to the judge, had produced a witness statement from his representative, a Miss Haywood, saying that she had not received the Employment Tribunal's reasons for its decision, which were dated 2 October, until 4 October. So her opinion was that time expired for the filing of an appellant's notice on 15 November. The judge said that time runs from the date the reasons were sent out, not the date they were received, and that that is made clear in the documentation sent by the Employment Appeal Tribunal.
22. The judge said that the Appellant had argued before him that the reasons were not sent out until 3 October, not 2 October. But the judge found that the reasons were in fact sent on 2 October, so time expired on 13 November. That finding cannot seriously be challenged since it is a finding of primary fact.
23. On 29 December 2013 the judge said the Appellant had written to the EAT saying that he thought time had expired on 15 November as he had received the reasons only on 5 October. Then the judge also recorded that on 6 January 2014 the Appellant had e-mailed the EAT blaming the EAT for telling him on 13 November that the time had expired on 14 November. The judge found the truth of that e-mail hard to accept.
24. The judge found it surprising that the Appellant had actually any doubt about the date upon which time expired as being 13 November 2013. The judge rejected the Appellant's primary case that he had worked out that the deadline was 15 November 2013. The judge simply did not believe what he said as the judge thought it was entirely inconsistent with his own e-mail to the EAT of 14 November and inconsistent with Miss Haywood's statement.
25. The judge therefore found that the Appellant had in fact wrongly believed that the date was 14 November, though the mistake that he had made in thinking that it was 14 November rather than 13 November was entirely his own fault. The judge thought that the Appellant was an intelligent man who could clearly have seen from the documents he had been sent that the date was in fact 13 November and that he had not been misled in any way by the Employment Appeal Tribunal, contrary to what he had sought to suggest.
26. The EAT explained in reaching its conclusion as follows:

"I have reached the conclusion that there is no satisfactory excuse and I'm sorry to say that I do not accept that I've had a full and honest explanation from the Claimant. His primary case that he believed it was the 15th November I reject. I am left, because he has not been full and honest, trying to decide whether it was the 13th or the 14th that he really believed. That is no basis on which to exercise a discretion in his favour."

27. For those reasons, the judge refused to exercise his discretion in favour of granting an extension of time.

The grounds of appeal

28. The Appellant has filed two documents in support of his application for permission: first, the Appellant's grounds of appeal and secondly, the Appellant's skeleton argument. The grounds that he raises in those documents can broadly be summarised as follows.

First, the Appellant says that he challenged the Employment Tribunal's decision by writing to it on 7 October 2013 before time expired and chasing for a response on 13 October 2013 and by then applying for a review on 6 November 2013 and by applying for a copy of the handwritten judge's notes. In so challenging the ET's decision, he says he should be taken as having made an appeal. He then applied, as I have already said, for an extension of time on 12 November which was refused late on 14 November.

The second ground of appeal is that the Appellant blames a number of factors for his delay in making the application. First, he relies upon faulty legal advice; secondly, on his own lack of knowledge of the correct procedures; thirdly, the fact that he has suffered from health problems to which I have already referred and from depression; and fourthly, he relies on fact that he requested the judge's notes and for a review of the ET's decision.

Finally, the Appellant says that since the delay was only a matter of 2 days, the discretion of the Employment Appeal Tribunal should have been exercised so as to give him permission to appeal.

Discussion

29. The Appellant has not sought in his written documents or before me to attack the Employment Appeal Tribunal's reasons for refusing to grant an extension of time. Those reasons were clear and cogent and they accorded with the binding authorities that apply as much to me as they did to the Employment Appeal Tribunal.
30. The reasons were, as I have already indicated, that there was no proper basis provided to the Employment Appeal Tribunal to exercise a discretion in favour of the Appellant when the Appellant had failed to give an honest and open and full explanation of what had happened and the reasons why he had failed to meet the time limit. He was, to put it bluntly, the author of his own misfortune. Had he given to the EAT such a full and honest explanation and an excuse for his delay which was sustainable and consistent, he might have had a prospect of getting an extension of time.
31. As Lewison LJ pointed out on paper, this court can only interfere with the exercise of a discretion if it has been exercised on the wrong legal basis, taking into account matters that ought not to have been taken into account or failing to take into account matters that ought to have been taken into account. That is not even alleged against the judge in the Employment Appeal Tribunal. That is not the burden of the Appellant's case. The Appellant has switched tack after his appearance before the Employment Appeal Tribunal, now more than a year ago, to try to blame others for his own delay, having failed in his attempt to pretend that he thought the deadline was later than he actually thought it was. This, as the judge said, was not a promising start for an application to extend time, which, as I have indicated, depends entirely on a full and honest explanation being given for a delay and the provision of a real excuse. Even now, no real excuse has been provided.
32. The legal advice obtained on 30 October by the Appellant gives no reason why there should have been a delay in filing the appellants' notice. The Appellant, as the judge said, is an intelligent man who is quite able to add 42 days to 2 October to reach 13 November.
33. The Appellant's health issues did not effect his ability to write, to e-mail and to communicate regularly with the EAT, just as the Appellant's health issues have not actually prevented the Appellant appearing before me and making submissions about things that he wishes to make submissions about. He has resolutely preferred to try and play ducks and drakes with the court by making submissions about an adjournment but not on the substantive issues. By that method, he has tried improperly to pressurise the court into adjourning this application. I suspect that he understands full well that he is not entitled to the permission he seeks.
34. The fact that the Appellant sought the review of the Employment Tribunal's decision before the time expired for the filing of a notice of appeal and the fact that the Appellant sought the judge's notes have nothing whatever to do with the need to appeal on time.
35. I have considered all the Appellant's grounds very carefully to see whether or not there is any serious possibility that the Appellant might succeed if he were given permission to appeal. In my judgment, however, there is no real possibility that he could succeed because he has presented no grounds that have any real prospect of success.
36. The Appellant unfortunately has failed to engage properly with the court on this occasion as he failed properly to engage with the EAT. Had he done so, and had he given a full open and frank account of what occurred, he might have had a chance of obtaining the opportunity to appeal from the Employment Tribunal's decision. He did not.
37. I have not said anything and I do not intend to say anything about the merits of the ET's decision because that is not what was before me, but it is always unfortunate when a litigant feels aggrieved by the process of the court's procedure in which he is engaged. It is most unfortunate that the Appellant feels as he does, but I have to say that as a matter of law this court is left with no choice but to decide the case properly according to the matters that have been placed before it and to deal with the Appellant's grounds of appeal on their merits. On their merits, there is no possibility of success on appeal. In those circumstances, I must dismiss the Appellant's application for permission to appeal.
38. The Appellant should understand that this unfortunately is his last chance. There is no right to renew this application to the Supreme Court or to any other court.