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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McBrearty v J McAleer and Sons Ltd [2014] NIIT 01710_12IT (04 February 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1710_12IT.html
Cite as: [2014] NIIT 1710_12IT, [2014] NIIT 01710_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1710/12
CLAIMANT: Donal McBrearty
RESPONDENT: J McAleer and Sons Ltd
DECISION
The time limit within which the application for a review of the decision in this case should have been lodged is not extended on the grounds that it is not just and equitable to do so.
Constitution of Tribunal
Chairman (Sitting alone): Mrs A Wilson
THE ISSUES
1. Is it just and equitable to extend the time limit within which the application for a review of the decision in this case should have been lodged so as to allow the application for review to be considered?
REASONS
2. This is an application for an extension of time within which to lodge an application to review the decision of the tribunal which issued to the parties on 6 November 2013. The review application should have been lodged within 14 days of that date.
3. The test as to whether time should be extended is set out in Rule 33 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Time may be extended by a chairman if it is considered just and equitable to do so. I have taken care not to confuse this test with the reasonably practicable test applicable to other Industrial Tribunal jurisdictions.
4. In considering this application I have considered the reason for the delay. This is attributable to ill health on the part of Mr McKeown, Barrister-at-Law, which in turn gave rise to a delay on the part of his instructing solicitors in obtaining his advices. This is accepted to be the case with some considerable sympathy for Mr McKeown. However I have been urged to take into account the fact that Mr McKeown was instructed by a firm of Solicitors who received the decision on time. I have nothing to indicate a contrary position.
5. I have considered the length of the delay.
6. The respondent received a copy of the tribunal decision as did his Solicitors following its issue on 6 November 2013. Any review application should have been lodged on or before 20 November 2013. On 26 November the tribunal received a fax dated 20 November informing the Office of the respondent's intention to apply for a review. The review application was received by post on 29 November.
7. I am satisfied that the point in contention was known to the respondent's Solicitors at the latest on 20 November 2013. I have been given no adequate explanation (beyond the need to instruct counsel) as to why the solicitors could not have lodged the review application at that time or why the letter of 20 November was not faxed to the tribunal until 26 November.
8. The point regarding which a review is sought is a discrete point albeit one that arises at paragraph 133 of a decision running to 143 detailed paragraphs. It is however a point which is both discrete and simple ie in circumstances where other aspects of the award of compensation were capped at 13 weeks, an element of the award signified to the tribunal as agreed between the parties (paragraph 42 of the respondent's written submission to the tribunal and the Schedule of Loss refer) was not.
9. The award of compensation runs to the very heart of the decision and in these circumstances I would have expected both parties to examine the provisions relative to compensation carefully and to act promptly in the event of a review being deemed appropriate. I accept the argument advanced by Mr Grainger that the review application in all the circumstances outlined including the simplicity of the contentious point could have been lodged by the respondent's solicitors in time.
10. I am mindful that the interests of justice require finality of proceedings. I am mindful that time limits are prescribed for a reason. I am mindful that the discretion as to whether time should be extended is broad. However it is not limitless.
11. I have considered prejudice to the parties and I am satisfied that neither party would be prejudiced in their ability to manage proceedings in the event of time being extended. I have considered prejudice to the respondent. The respondent will be prejudiced in not having an opportunity to have the review application considered if time is not extended. The claimant on the other hand will be prejudiced if time is extended to the extent that proceedings he could reasonably be expected to consider to be at an end will be re opened.
12. I have considered and balanced one with the other the various relevant factors outlined above. In the particular circumstances of this case I am satisfied that the review application could have been processed in time by the respondent's solicitors. No compelling explanation beyond the requirement to take the advice of Counsel was given as to why this was not done has been given and no explanation has been given as to why the letter of 20 November was not forwarded to the tribunal until 26 November when it was forwarded by fax. In all these circumstances I am not satisfied that it is just or equitable to extend time and I dismiss this application.
Chairman:
Date and place of hearing: 8 January 2014, Belfast.
Date decision recorded in register and issued to parties: