England and Wales Court of Appeal (Civil Division) Decisions

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

		The Royal Courts of Justice Strand, London, WC2A 2LL
		6 March 2018

LORD JUSTICE UNDERHILL:

1. This is an appeal against a decision of HHJ Peter Clark sitting in the Employment Appeal Tribunal dismissing appeal against the refusal of the Registrar to allow the appellant an extension of time for appealing. That being so, I need say no more about the claim in the Employment Tribunal than that the appellant, who is a doctor, had brought proceedings against his employer, the respondent Trust, for unfair dismissal and discrimination under various heads, including whistleblowing. On 14 April 2014 the Employment Tribunal sent to the parties its reserved judgment dismissing the discrimination claims but upholding the claim for unfair dismissal, subject to a 50 per cent deduction for contributory conduct as regards both the compensatory and the basic award. This appeal is concerned with the time for appealing against that judgment. I should start by summarising the relevant chronology.
2. Time for appealing expired on 27 May 2014. It is the appellant's case, and Judge Peter Clark expressly accepted, that on 12 May – that is, more than a fortnight before the expiry of the time for appealing – he put in the post to the EAT a valid notice of appeal and the required accompanying documents ("the appeal package"). However, there is no record at the EAT of the package ever having been received and no acknowledgement of receipt was sent to the appellant at the time. It was only on 1 July – that is, more than six weeks after he had posted it and more than five weeks after the expiry of the time limit – that the appellant realised that he had heard nothing. He telephoned the EAT who said that they had not received the notice.
3. Pausing there, there has never been an explicit finding about how it came about that the EAT had no record of the appeal package being received. In theory, the position could be either that the package was lost in the post and never received at the EAT at all, or that it did reach the EAT but was never processed as a result of some administrative oversight. But the appeal has proceeded at all stages on the basis that the appellant required an extension, which necessarily implies that service was not effected on the EAT before the necessary deadline. We must accordingly proceed on that basis ourselves. That is in any event the more likely explanation.
4. To return to the narrative, on learning that the package had not been received, the appellant sent another copy, which was received on 7 July 2014. The EAT treated that as the formal date of institution and, since it was on its calculation 42 days out of time, it invited him to apply for an extension. He did so, although we have not seen the letter in which he made the application. The Registrar in due course refused the application and it is from Judge Peter Clark's dismissal of an appeal against that decision that the present appeal lies.
5. It is convenient to say at this stage that a very similar situation was considered by this court in Peters v Sat Katar Co Ltd [2003] EWCA Civ 943, [2003] ICR 1574. In that case also the appellant, a litigant in person, had posted a notice of appeal to the EAT about two weeks before the expiry of the time limit but it had got lost in the post. About four weeks later, a fortnight after the time limit had expired, she rang the EAT to enquire about progress and was told that the package had never been received. She then re-sent it, but an application for an extension was refused by the Registrar and her decision was upheld on appeal to the judge. This court upheld the appeal and granted the necessary extension. It is necessary to summarise in a little detail the reasoning of Peter Gibson LJ, with whom Keene LJ and Sir Martin Nourse agreed. I do so as follows.
6. First, Peter Gibson LJ accepted that the principles first set out in the judgment of Mummery J in the Employment Appeal Tribunal in Abdelghafar v United Arab Emirates [1995] ICR 65 applied (see paragraphs 10 to 12 of his judgment).
7. Secondly, he held that the appellant had unquestionably acted reasonably in putting her notice of appeal in the post to the EAT at a time when, in the ordinary course of post, it should have been received before the deadline expired (see paragraph 13 of his judgment). In particular, he drew attention to rule 35(3) of the Employment Appeal Tribunal Rules 1993 (as amended) which read:

"Every document served by post shall be assumed, in the absence of evidence to the contrary, to have been delivered in the normal course of post."

8. Thirdly, at paragraph 14 of his judgment, he observed that:

"If circumstances existed which showed that she knew, or ought to have known, that she should have sought confirmation from the Appeal Tribunal of the receipt of the notice of appeal before she made such enquiry, then that would be a very relevant consideration."

He pointed out that there is case law to the effect that solicitors should have a system in place to chase what has happened to applications or appeals to the tribunal where receipt has not been acknowledged. However, he continued at paragraph 15:

"But it does not follow that a litigant in person like the applicant, with no experience of the Appeal Tribunal and with no knowledge of the practice of the Appeal Tribunal, should be expected to have a similar system or practice. If that were to be expected of a litigant, then, in my judgment, some communication from the Tribunal or Appeal Tribunal alerting him or her to the need to make such a check should be shown to have been received by the litigant. As the Registrar pointed out, information was given to the applicant about appealing, but we are told that it did not include any advice that if the notice of appeal was sent by post and if no acknowledgment was received from the Appeal Tribunal within some specified time thereafter, the litigant should check with the Appeal Tribunal. These days the court services are expected to be helpful to litigants, and this is particularly so in proceedings before employment tribunals where many litigants have no professional representation."

He concluded, at paragraph 16:

"In the circumstances, I do not think that the applicant can be said to be at fault in not making enquiry of the Appeal Tribunal until nearly four weeks from sending the notice of appeal."

9. In paragraphs 17 to 18 of his judgment Peter Gibson LJ held that the Registrar and the judge had not proceeded on the foregoing basis, i.e. on the basis that the appellant was not at fault; and at paragraph 19 he said that in the particular circumstances of the case, the discretion to extend time could only be exercised in one way – that is, in the appellant's favour.
10. Importantly for our purposes, at the end of his judgment, at paragraph 21, Peter Gibson LJ added the following coda:

"I express the hope that the Appeal Tribunal will reconsider the practice in relation to such applications. It seems to me not unreasonable that the information pack which is provided to litigants together with the decision of the Employment Tribunal should include some further guidance as to what litigants should do if they wish to appeal a decision. If the appellants put the notice of appeal in the post but nothing further is heard, they should be told how long they should wait before they should enquire from the Appeal Tribunal why they have received no acknowledgment."

11. In response to that final observation on the part of Peter Gibson LJ, the Employment Tribunal did indeed institute a practice designed to meet his concerns. For many years, parties have been sent with the reserved decision of an Employment Tribunal a booklet entitled "The Judgment" which gives guidance on various matters including a possible appeal. At some more recent time, the practice of enclosing a hard copy of the booklet was abandoned, but the letter sent with the decision draws attention to the booklet and tells the parties how to access it online or otherwise. The letter sent to the parties with the Tribunal's judgment in the present case read (so far as material):

"A copy of the Employment Tribunal's judgment is enclosed. There is important information in the booklet 'The Judgment' which you should read [emphasis supplied]. The booklet can be found on our website at [web reference given]. If you do not have access to the internet, paper copies can be obtained by telephoning the Tribunal office dealing with the claim. The judgment booklet explains that you may request the Employment Tribunal to reconsider a judgment or a decision. It also explains the appeal process to the Employment Appeal Tribunal. These processes are quite different and you will need to decide whether to follow either or both. Both are subject to strict time limits. An application for a reconsideration must be made within 14 days of the date the decision was sent to you. An application to appeal must generally be made within 42 days of the date the decision was sent to you, but there are exceptions - see the booklet [emphases in original]."

There then follows a paragraph about what happens if the written reasons are not included with the judgment. I need not set that out, but it is important again to note that explicit reference is made to the booklet. The letter continues:

"For further information, it is important that you read the judgment booklet."

12. The booklet itself deals with various matters, but there is a section at pages 3 to 4 headed "How can I appeal against the Tribunal's judgment?" Much of it is about the process of lodging an appeal and the relevant time limits, but it ends with the following passage:

"If you have not received an acknowledgement from the EAT within seven days of posting the notice of appeal, you should contact the EAT to confirm they have received your appeal."

(The passage appears in bold in the original and stands out from the surrounding text.) It then gives telephone numbers and email addresses for the relevant enquiry. It will be seen that that passage in particular is precisely the kind of information which this court in the Peters case held was lacking and which Peter Gibson LJ recommended should be included in the material sent to potential appellants.

13. I should also refer, because the appellant relies on them to some extent, to the terms of the 2013 Employment Appeal Tribunal Practice Direction. This gives guidance on a range of procedural matters, including how to institute an appeal and the applicable time limits and the circumstances in which an extension may be granted. Its significance for our purpose is not in what it says but in what it does not say, in as much as it contains no statement equivalent to that which I have just quoted from the judgment booklet about when an appellant may expect an acknowledgement from the EAT of receipt of the appeal package or, therefore, what to do if it is not received.
14. For the purposes of this appeal, I need not consider the reasoning of the Registrar, since the appeal to Judge Peter Clark was by way of re-hearing; and indeed he had the advantage, which the Registrar did not, of hearing oral submissions from the parties. I need not set out Judge Clark's reasoning in extenso. In summary, he applied the well-established approach in Abdelghafar, which has since been approved on more than one occasion by this court; and he held that no good excuse had been shown for the delay in serving the appeal package. His essential point was that the terms of the judgment booklet which I have quoted plugged the gap which had been identified in Peters and told litigants clearly and explicitly that they ought to check with the EAT if they had not received an acknowledgement of service of the appeal package within seven days of sending it. In the present case the appellant had accepted in his submissions to Judge Clark (apparently he was not asked to give oral evidence) that he had not sought to obtain a copy of the booklet, notwithstanding the terms of the covering letter, and had never read it. He said that he had taken his guidance on procedural matters from the Practice Direction, with which he was familiar because he had brought several previous appeals to the EAT (apparently at least eight). Judge Clark held that that was not a good excuse for not reading the booklet and following the guidance in it.
15. Ms Margaret Pennycook, who appears for the appellant pro bono and for whose assistance the court is very grateful, puts the appellant's appeal on two alternative bases. First, she submits that Judge Clark's submission was wrong in law on the application of the ordinary Abdelghafar principles; but, secondly, she submits that those principles must now be regarded as superseded or supplemented by the practice which has developed in the civil courts, and been extended to some other tribunals, following the decisions of this court in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, and Denton v TH White & Co [2014] EWCA Civ 906, [2014] 1 WLR 3926 ("the Mitchell/Denton approach"). It was confirmed by this court in Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2016] 1 WLR 673, that that approach is applied equally to applications for extensions of time for appealing. So far as that alternative way of putting the case is concerned, the question of the relationship between the Abdelghafar guidance and the Mitchell/Denton approach was argued only last week before a different constitution of this court, in a case called Green v Mears Ltd, and the decision of the court was reserved. The question of the relationship between the two approaches is not therefore one on which we can enter today. However, for reasons that will appear, I do not believe that it is necessary to do so in order to dispose of this appeal.
16. I start by considering the matter on the conventional Abdelghafar basis. The essential question is whether the appellant did indeed have a reasonable excuse for not instituting his appeal prior to 7 July 2014. It goes without saying that the loss of the appeal package in the post is a good reason for the initial part of the period following its despatch. But clearly there has to come a time when the onus is on a litigant who has not heard from the tribunal to take the initiative and check that the package has indeed been received, and they will be at fault if they do not do so. If the matter were at large, it is clear from the decision in Peters that an unrepresented appellant who waited some weeks before chasing up the position would not be regarded as being at fault. But the matter is not at large. Appellants now have the guidance given in the judgment booklet. This advises them explicitly, and with emphasis, as I have quoted, to contact the EAT if they have not received an acknowledgement of receipt of the appeal package within seven days. I dare say that an appellant would not be treated as culpable if he or she did not telephone the EAT until the morning of the eighth day; the booklet does not impose rigid rules and a little latitude would no doubt be acceptable. Nevertheless that sets the parameters for how an appellant should reasonably behave. As this court said in Peters, where an appellant knows or should have known that they should seek confirmation of receipt within a certain time and does not do so, that is "a very relevant consideration". In this case, the appellant had been advised in clear terms by the covering letter to consult the booklet but had not done so, and there is the additional factor in his case that he must also have known from his previous appeals that it was the practice of the EAT to acknowledge receipt promptly.
17. In those circumstances I find it hard to see how Judge Clark could be said to have erred in the exercise of his discretion in finding that there was no reasonable excuse for the appeal not being lodged until 1 July 2014. Ms Pennycook acknowledged that she had to establish either that Judge Peter Clark's decision failed to take into account some relevant factor or that it was outside the reasonable exercise of his discretion under the rules. But on either way of putting it her essential argument was the same, namely that the appellant had behaved impeccably by posting the appeal package in good time; that it was no fault of his that it had been lost in the post; and, crucially, that it was reasonable for him to wait as long as he did before checking what had happened about it. In relation to that final element, she submitted that it was not unreasonable for the appellant not to check the terms of the booklet. He would have had to go on line to do so. He had no reason to suppose that it said anything about the particular question of when he might expect an acknowledgement of receipt from the EAT and he was entitled to regard the practice direction, which was silent on the question, as authoritative.
18. I am afraid I cannot accept those submissions, essentially for the reasons already given. The covering letter is quite explicit that the judgment booklet must be read. The appellant was not entitled to assume that it did not contain anything that he did not already know, whether from the practice direction or elsewhere. The fact that he had appealed to the EAT on several previous occasions if anything counts against him, both because he had had several previous opportunities to read the judgment booklet if he had chosen to do so, and because he would have known that, as I have said, it was the practice of the EAT to send a prompt acknowledgement of receipt.
19. I can accordingly see no error of law in Judge Peter Clark's approach or conclusion applying the conventional Abdelghafar principles.
20. Even if the approach adopted to extensions of time for appealing in this court following Denton, Mitchell and Hysaj may in some respects be less strict than the Abdelghafar approach, I do not believe that adopting such an approach could have led to a different result in this case. There is accordingly no need to postpone consideration of this aspect of the appeal pending the decision in Green v Mears. I take in turn the familiar three elements in the Denton/Mitchell exercise.
21. First, a delay of over five weeks beyond the specified deadline is plainly in my view "serious or significant" in the context of an appeal, and in particular an appeal from the EAT, which allows for an unusually generous primary time limit.
22. Secondly, it follows from my reasoning on the Abdelghafar approach that there cannot be said to have been a good reason for that delay or a substantial part of it. If the appellant had read the judgment booklet and contacted the EAT forthwith he would still have had time to serve the appeal package before the deadline of 27 May, and even if he had delayed a short time and just missed it his case for an extension would no doubt have been strong. But he did not read the judgment booklet. He took no steps to check what had happened about his appeal, notwithstanding that he had received no acknowledgement of receipt.
23. Thirdly, I can see nothing unjust or disproportionate in withholding an extension in this case. Cases where an appellant is unable to proceed because of missing a procedural deadline very often, and understandably, feel unfair to the party himself or herself, but applying procedural rules is an aspect of justice. Of course the initial loss of the package was not the appellant's fault, but his delay thereafter in checking what had happened to it was, for the reasons that I have given, culpable.
24. I reach those conclusions without any detailed consideration of the merits of the proposed appeal. On either of the approaches potentially in play, the courts are generally very cautious about undertaking any examination of the merits in the context of an application of this kind: see per Mummery J in Abdelghafar at page 72B and per Moore-Bick LJ in Hysaj at para. 46. Ms Pennycook did briefly seek to persuade us that this was an appeal that was very strong in any event on the question of the deduction of 50 per cent for contribution. All that I think I need say is that I do not believe that that is the case. The Employment Tribunal at paragraphs 77 to 91 of its reasons approached the issue of contribution in a rational and reasoned manner by reference to the correct statutory provisions and authorities and made explicit findings of fact. The re-pleaded summary grounds of appeal to the EAT which Longmore LJ required the appellant to lodge as a condition of the grant of permission do not demonstrate any unarguable error in the approach that the tribunal there took. I need not and do not say that the appellant might not nevertheless have identified some errors in its reasoning. All that I do need to say is that I do not accept that this can be treated as an appeal which had very good prospects of success.
25. For all those reasons, I would dismiss this appeal.

LORD JUSTICE DAVIS:

26. In advancing this appeal on behalf of the appellant, Ms Pennycook sought to say that he should end up with the same result as was achieved by Mrs Peters in the Peters case. But one only has to consider the circumstances of the Peters case to see how different the present case is. Mrs Peters was an inexperienced litigant in person. In the present case, as the judge noted, Dr Haydar was very experienced in the matter of employment appeals, having been engaged in a number of them. As was accepted before us, he would in the past have received the like standard form letter as he got on this instant proposed appeal. Further, in the past he also would have received acknowledgements of receipt within seven days of his various appeals, which he did not get in the present case. Those matters alone distinguish his position from that of Mrs Peters.
27. But above all, as my Lord has pointed out, a critical distinction is the fact that at the time of the Peters' decision there was no such booklet containing the current guidance and advice about what to do if no acknowledgement had been received within seven days.
28. Ms Pennycook said that the appellant was focusing on the practice direction, which is entirely silent about that particular situation. But I agree with Ms Wedderspoon that placing the advice in the information booklet was in fact a very "user-friendly" way of confronting the point so far as unrepresented litigants were concerned. Regrettably, it was down to Dr Haydar himself that he failed to familiarise himself with the contents of that particular information booklet.
29. In such circumstances, it seems to me also that Judge Peter Clark acted well within the range of a proper exercise of discretion in dismissing the appeal. That may, on one view, be a somewhat tough result on Dr Haydar; but a rigorous approach is by no means inappropriate in a context such as the present.
30. I also agree that, even if one were assuming for present purposes it to be appropriate to apply the approach in the civil procedure situation confronted by the decision in Denton v White, the outcome should and would have been the same. On any view, the delay here was significant, several weeks. The real question then was to consider why the default occurred. Of course, Dr Haydar can say that the default occurred just because the package never was delivered. But one has to focus on the period of time that elapsed after the time limit for appealing had expired; and that default occurred in truth just because Dr Haydar had failed to familiarise himself with the booklet and had failed promptly to query the position with the Employment Appeal Tribunal.
31. Considering also his own background experience and considering all the circumstances, it cannot be said to be unjust or disproportionate to refuse him an extension of time. So whichever way one looks at the position, the actual decision of Judge Clark is one that has to be upheld.
32. Accordingly, I agree with Lord Justice Underhill that this appeal must be dismissed.

Order: Appeal dismissed.