Scottish Court of Session Decisions

[1] The petitioner in these proceedings was formerly employed by Glasgow City Council. He was represented at the hearing before me by Mr J J Mitchell, Q.C. and Mr O'Carroll. The first respondents are Glasgow City Council. They were represented by Mr Fairlie, Advocate. Answers were also lodged for the Employment Appeal Tribunal, represented by Mr Dewar, Advocate.

[2] In April 1995, the Glasgow Industrial Tribunal issued a decision to the effect that the petitioner had been unfairly dismissed by his employers. (That tribunal later became the Employment Tribunal). After protracted legal proceedings, a hearing to determine what the petitioner's remedy should be was set down for 7 and 8 June 1999. The petitioner did not appear at that hearing, but the Employment Tribunal, having received a letter and sickness certificate from the petitioner, treated these documents as a request for a postponement. The hearing was continued to 7 and 8 October 1999. The petitioner appeared at that hearing but was unrepresented. The Employment Tribunal refused the petitioner's request for a further postponement and proceeded to determine the amount of his award in respect of his unfair dismissal. They restricted his award to a Basic Award, under deduction of 75% to reflect what the Employment Tribunal considered to be the petitioner's contributory conduct. They also found the petitioner liable in the sum of £500 expenses in respect of the petitioner's non-appearance at the earlier hearing. The written decision of the Employment Tribunal to the foregoing effect was issued to the parties on 15 November 1999.

[3] The petitioner decided to appeal against that decision of the Employment Tribunal. The appeal lay to the Employment Appeal Tribunal. From the terms of the appeal document that the petitioner prepared and despatched to the Registrar of the Employment Appeal Tribunal, it appears that the petitioner was seeking inter alia a compensatory award of some thousands of pounds and was challenging the decision of 15 November 1999 on various clearly stated grounds; they are set forth in a 4 page document, No.6/5 of process.

[4] All parties appearing before me were agreed that there was a time limit for appealing against the decision of the Employment Tribunal to the Employment Appeal Tribunal. The appeal had to be taken within 42 days. Parties were all agreed that the last of the 42 days was Monday 27 December 1999. The office of the Registrar to the Employment Appeal Tribunal, the EAT, was closed on Christmas Day and remained closed until it opened on Wednesday 29 December 1999.

[5] It is not in dispute that the petitioner faxed a completed form of appeal to the Registrar on 24 or 25 December 1999; but that he did not at that time fax with it a copy of the decision taken by the Employment Tribunal or of the "extended written reasons" as required by The Employment Appeal Tribunal Rules 1993 ("the Rules"). The petitioner, however, avers that on 24 or 25 December 1999 he also sent a copy of the decision appealed against to the Registrar, by post, but that that posted copy was not received by the Registrar. It is averred that on 29 December, when the offices of the EAT re-opened, the petitioner telephoned those offices and then learned that the posted copy of the decision had not been received by the Registrar. He then, on 29 December, faxed a copy of the decision to the Registrar. It was "received" on the office's fax machine at 13.32 hours. On 18 January 2000, the Registrar wrote a letter to the petitioner treating the appeal as not having been made until 29 December 1999; the letter (No.6/9 of process) intimated that the appeal was accordingly two days late, "and must be deemed to be time barred". The letter informed the petitioner that he could seek an extension of time for lodging his appeal and explained how to go about it. The petitioner (see 6/10 of process) sought to explain the circumstances in which he had faxed and posted the various documents but, on the hypothesis that delay had occurred and that an extension of time would be necessary, requested an extension of time to "allow the appeal to proceed or at least that [it be] put before the Appeal Tribunal Judge for a decision". The Registrar put the request for an extension of time before Lord Johnston and, on 21 February 2000, Lord Johnston, without giving reasons, refused to grant the time extension sought.

[6] Although the wording of the petition foreshadows the presentation of a number of different arguments, Mr Jonathan Mitchell, Q.C., for the petitioner, made it plain that only one point was to be argued, namely, that to which the petitioner's second plea-in-law relates. That plea reads:

However, at the conclusion of his submissions, he modified his position and decided not to ask this court to pronounce any positive order; he invited this court to do no more than reduce the determination by the judge, dated 21 February 2000.

[7] Mr Mitchell acknowledged that, leaving aside Rule 37(2) of the Rules, the 42 day period would end on 27 December 1999. All parties were agreed about this. Counsel drew attention to the definition of "the Appeal Tribunal" and "the Registrar" in Rule 2. He also referred to Rule 3(1), prescribing how an appeal to the Appeal Tribunal was to be instituted; he explained that the reference in paragraphs (b) and (c) to an industrial tribunal had been amended to read "an employment tribunal". Rule 35(1) prescribed the method whereby service as required by Rule 3(1) was to be effected. In that context - in reply to a submission from Mr Fairlie - he referred to Department of Agriculture for Scotland v Goodfellow 1931 S.C. 556. That was a case in which the Agricultural Holdings (Scotland) Act 1923 required the giving of written notice, but in the form and manner prescribed by the Sheriff Courts (Scotland) Act 1907. Rule 113 of the 1907 Act provided that a notice, "may be given by a messenger-at-arms or sheriff officer, or by registered letter signed by the person entitled to give such notice...". The court held that, although the notice might be given by any one of the three methods prescribed, the giver of the notice could adopt no other method and was restricted to any one of the three. That case, he submitted, illustrated exactly the principle applicable to the relationship between Rule 3 and Rule 35 of the 1993 Rules. In his submission on this point, Mr Fairlie (whose submissions were adopted by Mr Dewar) sought to distinguish that case essentially on the basis that of the provision in the Agricultural Holdings (Scotland) Act 1923 was to the effect that notice "shall be given... in the manner prescribed by the Sheriff Courts (Scotland) Act 1907..." (emphasis added). He founded upon the use of the word "may" in Rule 35.

[8] In my opinion, it is clear that, although Rule 3 is a mandatory provision requiring that the documents therein specified be served on the Tribunal, Rule 35 describes the methods, and the only methods (subject to Rule 35(5), whereby such service might be validly effected. The word "shall" appears in Rule 3. Reading Rule 35(1) short, and only in relation to service upon the Appeal Tribunal, what it says is,

In my opinion, that Rule governs and prescribes the only admissible methods of service, with the exception, however, contained in Rule 35(5). Strangely, neither counsel who made submissions on this issue referred me to Rule 35(5). For reasons that I shall refer to later, I consider it doubly important. It provides

In my opinion, that provision makes it even more clear that the methods of service referred to in 35(1) are the only methods of service, unless the Appeal Tribunal directs otherwise. The words "in the manner prescribed by these Rules" point to the same construction.

[9] Counsel for the petitioner pointed out that the Registrar, although he was satisfied - on the basis that copies of all the necessary documents had been faxed to his office - that all the documents had been "served" upon the Tribunal by 29 December 1999, had concluded that the Appeal was out of time because only one of the necessary documents (the notice of appeal) had been served before the end of 27 December 1999. That was why he was prepared to treat the appeal documents as an application for extension of time and to send such an application to Lord Johnston to consider and determine that matter. The petitioner, in his ignorance of the law applicable and, in particular, in ignorance of Rule 37 accepted that the matter should be disposed of in this way. The decision of Lord Johnston (under Rule 20) was a decision not to grant an extension of time. Counsel did not challenge the right of Lord Johnston to make the decision he did in the circumstances in which the matter was presented to him. In the result, there was no consideration by anyone of the applicability and effect of Rule 37 in the circumstances of this proposed appeal. Mr Mitchell accepted, for the purposes of his submissions, that the obligation to serve the documents specified in Rule 3 was mandatory, not merely directory. He simply argued that, on the averred and admitted facts, it was clear that all the necessary appeal documents had been timeously served. In short, the Registrar had erred in treating the appeal as having been lodged late. The Registrar had therefore also erred in suggesting to the petitioner that he might consider making an application for an extension of time. In law and in fact, no such extension was required, as the appeal had been served timeously. The whole basis upon which the matter had been presented to Lord Johnston was flawed; he had not been asked to consider if the appeal documents had been served timeously.

[10] Mr Mitchell did not suggest (and all counsel were agreed on this) that the sending of papers by fax was a sending "by post". Furthermore, all were agreed that there had been no effective service by post within the prescribed time. All parties, however, proceeded upon the basis that, if papers were "sent" by fax, and received by fax, then they were "delivered" within the meaning of Rule 35(1); and the only issue was whether or not they were delivered within the 42 days, I shall deal with this matter shortly; but I must point out that, at least at first blush, the words "delivered to the Registrar... at the office of the Tribunal..." do not sit easily with the transmission of material by facsimile. The motion of delivery involves that some tangible, corporeal thing is taken to the Registrar, or to his agent, at a place, such as his office. I suggested to parties that I might find it difficult to proceed upon the basis that a "sending" by facsimile was a delivery; I was unsure that I would be bound to interpret or apply statutory regulations in the manner agreed by the parties if I considered that the agreed interpretation was not sound. I understood parties to accept that their unanimity on the point was not binding upon me in relation to a matter of statutory interpretation. As Rule 35(5) allows the Appeal Tribunal to direct that service of any document may be effected otherwise than in the manner prescribed by these Rules, it may be that the Appeal Tribunal, although it has not formally directed anything, has come to observe or operate a practice whereby service may be effected by using facsimile technology. Surprisingly, as I have said, no party referred in his submissions to Rule 35(5) in this connection and I shall have to return to that matter in due course.

[11] The crucial matter, the petitioner submitted, was the application of Rule 37(2). That Rule, it was submitted, was designed for a practical purpose; it should be construed purposively. Delivery (c.f. the cognate "delivered" in Rule 35(1)) was the "act" that could not be done at a time when the office was shut; and it could not be done at that time because the office was shut. There was no one there to deliver the documents to; there was no one to take delivery. The act of delivery could therefore not be done until the office re-opened on 29 December; that was when the act was done. It was thus done timeously. The petitioner could and should have been afforded an opportunity to challenge the Registrar's decision that the appeal was out of time. The petitioner was not assisted by lawyers at the time and the Registrar should not have pronounced the decision he did pronounce without reference to Rule 37. The whole process had been flawed by the Registrar's failure to notice the applicability of Rule 37, to advise the appellant of it or to draw Lord Johnston's attention to it. The correct course, it was submitted, was simply to quash the decision of Lord Johnston and allow the Registrar to refer the whole matter to Lord Johnston of new, for a fresh decision. It was not now proposed that this court should order that the matter be put out for determination before a different judge.

[12] Mr Fairlie (whose submissions were adopted by Mr Dewar) argued that the crucial words in Regulation 37(2) were the words, "and by reason thereof the act cannot be done on that day". The required act or acts could have been done before 29 December. The appeal itself was faxed and "delivered" on 25 December; there was no reason at all why copies of the remainder of the documents required by Rule 3 should not have been faxed at the same time and in the same way; that would have amounted to timeous delivery of all the necessary documents, not just some of them. Counsel founded upon Swainston v Hetton Victory Club Ltd [1983] 1 All. E.R. 1179. Although the wording was quite different in the statutory provision under consideration in that case, the result of applying the reasoning in that case was that the appellant failed. In effect, the words with which Rule 35(1) concluded, namely, "or delivered to the Registrar", should be construed as if they read, "or delivered to the office of the Registrar". There was nothing in the present case to prevent what Waller L.J. had described, at page 1184cd in Swainston supra as, "delivery... to the proper quarter". Counsel also referred to McNiven v Glasgow Corporation 1920 S.C. 584 and Ford v Stakis Hotels and Inns Ltd [1987] I.C.R. 943. In essence, the petitioner should fail because (1) he did not fax the reasons along with the appeal form within the 42 days; (2) he could have served the necessary material all at the same time before the 42 days expired; (3) there was no delivery at all of the necessary material until after the expiry of the 42 days and the non-delivery before then was not caused by the fact of the appropriate office being closed; and (4) neither Lord Johnston, nor the Registrar, was asked to give any consideration to the possible applicability of Rule 37(2). He further emphasised that nothing had been done to prevent service; there was no blocking of the service. The matter had been entirely in the petitioner's hands and he had chosen not to serve the documents within the time available. Mr Dewar adopted and emphasised Mr Fairlie's submissions and, in particular, founded upon what he said was the absence of any causal link between the fact of the office being closed and the non-delivery of the necessary material.

[13] Rule 3 governs the method of instituting an appeal of the kind that the petitioner sought to take against the decision of the Employment Tribunal dated 15 November 1999 [No.6/3 of process]. The period within which such an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which the extended written reasons for the decision or order of the Tribunal was sent to the petitioner. In the present case, all parties were agreed that the 42 day was 27 December 1999. The parties were at one in submitting to this court, for the purposes of the present case, that it was mandatory to follow the steps prescribed in Rule 3 and to institute the appeal "by serving on the Tribunal all the necessary documents specified in paragraphs (a), (b), and/or (c)." Rule 3 contains no reference to the method of serving these documents on the Tribunal. The method of serving is prescribed in Rule 35. In relation to, "any notice or other document required or authorised to be served on, or delivered to, the Appeal Tribunal", it provides that such notice of that document, "may be sent by post or delivered to the Registrar - (b)... at the office of the Tribunal in which the proceedings in question as being dealt with...". All are agreed that, for the present case, the relevant office was that situated at 52 Melville Street, Edinburgh. Rule 37(2) provides for an extension of the 42 day period if, but only if, the doing of any act necessary to institute an appeal "cannot be done" on a day when the office is closed, by reason of the fact that the office is closed. There are many provisions of this kind to be found in statute and statutory instruments in both the civil and the criminal fields. What is unusual about this provision is that it does not give an automatic extension of the kind that is commonly found: see, for example, section 194(1) of the Criminal Procedure (Scotland) Act 1995. The reason for departing from the normal type of provision for automatic extension, by including in Rule 37(2) the words, "and by reason thereof the act cannot be done on that day", is not clear. Their presence in Rule 37(2) prevents automatic extension and requires consideration of whether or not the fact that the office was closed prevented "the act" from being done on a day when the office was closed. According to the respondents, the "act" is the "serving" prescribed by Rule 3(1). Only if that act cannot be done because the appropriate office of the Tribunal is closed, then it may be done on the next day when the office is open. According to the petitioner, the word "act" is apt to include the act of serving in the manner prescribed by Rule 35(1). As I have already indicated I have concluded that the petitioner is right in this respect. What Rule 35(1) does is to give to the would-be appellant a right to serve either by sending the necessary documents by post or by delivering the documents to the Registrar at the appropriate office. If he chooses the delivery option and is prevented from delivering by the circumstance that the office is closed when he seeks to deliver, Rule 37(2) comes into play. The delivery envisaged certainly includes the physical delivery to the Registrar at the office of the Tribunal; and the respondents argued that there was nothing to prevent physical delivery by putting the necessary documents through the letter box, assuming there was one. Mr Dewar, in the course of his argument, suggested that, in order to give content to Rule 37(2), one should envisage the possibility that a particular office might not have a letter box, or, as was more likely, that the office might be situated within some larger building and there was no means of delivering material to the office itself when the office and the whole building in which it was located were closed. Applying th

[14] It is also of some interest to note that if physical delivery within the meaning of the Regulations could be effected by shoving a parcel of the required documents through the letter box of an empty office (empty because the Registrar and his/her staff were on holiday) no one would know on which of the days of the holiday the delivery had taken place. The respondents' position is that if the appellant had travelled to Edinburgh on 27 December (when the office was unoccupied) and put the documents through the letter box, he would have "delivered" on time - though no one would have taken delivery. But if he had travelled to Edinburgh on 28 December (when the office remained unoccupied) and put the documents through the letter box he would not have delivered on time. The difference was crucial, despite the fact that in neither case was there anyone to take delivery. I am driven to ask, "How would the Registrar know, when he opened the office on 29 December, when the documents had been put through the letter box?" "Would he have to institute an inquiry to discover when the delivery had been achieved?" "Would they be timeously delivered if they had lain behind the door untouched for 36 hours but too late if they had lain untouched for only 12 hours?" The very posing of these questions suggest to me that the respondents' arguments are surprisingly technical for public bodies to advance, at the taxpayer's expense, to seek to deny an unassisted, unemployed person an opportunity to present an appeal on the merits, against a decision taken by a tribunal which did not have the benefit of hearing representations from a lawyer acting for the appellant.

[15] Mr Dewar's argument based on the hypothesis that the office of the Registrar of the EAT might be physically inaccessible strikes me as fanciful. No one suggests that anywhere in the UK the Registrar of the relevant EAT inhabits such an office. But it is necessary to ask, in any event, what is meant by "delivered to the Registrar.... at the office of the Tribunal." If, as Mr Fairlie submitted, the words "delivered to the Registrar" ought to be construed as if they were "delivered to the office of the Registrar... at the office of the Tribunal", Rule 35(1) becomes a very awkwardly framed Rule indeed. The Registrar has his office at the same place as the Tribunal has its office and the implied duplication of the Rule's reference to the office is awkward, to say the least. Furthermore, it is plain that a would-be appellant could not effect delivery by taking a parcel containing the documents to the home of the Registrar and placing it in the Registrar's hands. That is because the rule plainly envisages the delivery shall be both delivery to the Registrar and delivery "at the office". But if what was required was nothing more than delivery to the office then it is not easy to see why the words used are "delivered to the Registrar... at the office". It would be enough to require delivery to the office of the Registrar. It appears to me that it is perfectly plausible to argue that there must be some act of delivery to the Registrar at the office. I would not go so far as to suggest that the Registrar personally has to receive delivery; obviously he could authorise others at the office to accept delivery on his behalf, as his agent. That would seem to be permitted by the definition of "the Registrar" in the interpretation rule, Rule 2. If what is envisaged is delivery either to the Registrar, or to the Registrar's authorised agent, then no such delivery could be made at a time when the office was closed and, as a result, the Registrar was not there and there was no one present authorised to take delivery on behalf of the Registrar. This would still be so whether or not there was a letter box shared with other occupants of the building. I should be reluctant to construe any observation, uncertainties or ambiguities in these Regulations to give effect to the technical arguments and their inherent absurdities unless I were to be left with no choice. I do not think I am forced into that position. The better reading of the Regulations so as to make them work in a sensible way that does not mock common-sense is to hold that delivery requires an acceptance by the deliveree of the article to be delivered; and that no delivery can taken place "to" the Registrar "at" the office when the office is closed and unoccupied. Thus Rule 37(2) allowed delivery on 29 December 1999.

[16] However, what may render this discussion, and the whole basis of the submissions made to me, unreal is that all parties before me argued upon the assumption that sending papers by fax was "delivery" within the meaning of Rule 35. In other words, everyone assumed that the Regulations envisaged (apart from postal service and physical delivery) some form of delivery that was not physical delivery. I am far from satisfied that that is so. As I understand it, although the matter was not discussed before me, a person who wishes to transmit a facsimile ("fax") of a document to another person in another place may do so by feeding the document, or a copy of it, into a fax machine, dialling the fax telephone number of the intended recipient and pressing a "send" button on his own machine. What happens then is that the "sender's" fax machine "reads" the document and copies its text and/or graphics into a digital, electronic condition. That digital information is then "transmitted" by telephone to the telephone fax answering machine of the intended recipient. Nothing actually moves between the sender's premises and the recipient's premises. Nothing is "sent" in a literal sense; nothing "arrives". Nothing is physically delivered. The words "send" and "receive", by fax, are used colloquially, but metaphorically. The digital electronic signal is used at the recipient's premises to activate a printer which reproduces a copy of the document fed into his machine by the "sender". Now it is easy to suppose that such a "sending" is tantamount to delivery; but it is not in fact delivery. It is easy to suppose that it may be deemed to be delivery; but nothing in the Regulations or in any "direction" by the EAT provides that "sending" by electronic means is to be deemed to be delivery within the meaning of Rule 35(1). There is nothing whatsoever to indicate that the 1993 Rules were framed with the use of fax machines in mind. (Still less is it at all likely that they were framed with e-mail in mind, although e-mail could just as effectively "deliver" a copy of a document which had been scanned into the sender's personal computer and transmitted by e-mail; and, of course, many fax messages are now sent by e-mail, not by the earlier form of fax machine.) Counsel were agreed that the Regulations in question had been in force for many years in broadly the same terms and contained the same words anent delivery; the same language had been used in the Regulations in force at a time when faxes and e-mails were unknown. It appears to be more probable than not that the Employment Appeal Tribunal Rules 1993 were not framed on the basis that the sending of documents such as those required to be served under Rule 3, could be effected by faxing them, or e-mailing them, to the Registrar's office. My view on that matter is reinforced by the provision in Rule 35(5). For that rule was plainly designed to permit the Tribunal to "direct" that the service of any document might be effected by some means not prescribed in the Rules. It specifically envisaged the sanctioning of different, including new, methods of serving documents. What ought to have happened is that, when it came to realise that the use of fax machines and e-mailing was becoming common and convenient, the EAT should have issued a direction to regulate the service of documents by whichever of these means the Appeal Tribunal was prepared to countenance. At the same time they could have considered how to regulate such novel methods of service when the Registrar's office was closed. What in fact appears to have happened, as I understood the answers by counsel to my questions on this subject, is that in practical terms the Appeal Tribunal and the Registrar simply came to ignore the literal terms of

[17] In these circumstances, it appears to me that the procedures of the Registrar and the Appeal Tribunal in this regard, are in an unsatisfactory state, at least in relation to the comparatively new technologies for despatching copies of documents electronically. Nothing is prescribed; nothing is laid down; nothing is known for certain; practices evolve without promulgation; all is left undefined and uncertain; no one has defined what would be deemed to be the acceptable electronic equivalent of physical delivery. No one has directed when "delivery" by electronic means occurs. The situation for an appellant, particularly one who has no access to legal advice, is worsened by the sending to him of the form, a copy of which was sent to him on 16 December 1999 by the Registrar, namely Form EATL.1. This document does not deal at all with the practice, procedure and rules, if any, governing the electronic despatch of electronic digitalised signals by telephone lines. If there were to be a direction of the kind envisaged by Rule 35(5) one would expect it expressly to address the situation envisaged by Rule 37(2), i.e. the office being closed for business. I say that because the sending of a copy of a document by means of a fax machine or by e-mail does not necessarily mean that the "arrival" of the document at the premises of his addressee is simultaneous with the sending. For, if the recipient's fax machine is engaged or otherwise not receiving messages, the sender's fax machine may be programmed to go on repeating the attempt to "transmit" the document until it succeeds. That is notoriously true if faxed messages are sent by a personal computer rather than by the "traditional" fax machine. Any "direction" would have to make plain whether the service was effected by the "sending" of the fax or was effected only by the "receipt" of the faxed copy; and what would constitute "receipt" or delivery. It would, for example, have to deal with the situation which arises from time to time, even in the best regulated offices, that the recipient fax machine does not print the message, or delays in printing it, owing to some technical fault, such as the absence of ink - in the older type of fax machine - or paper. The direction would also have to deal with the situation when the office of the Registrar was closed. E-mails may be delayed; they may be held by an Internet Service Provider until the telephone connection to the addressee becomes disengaged from some other use, and feed to "receive" the electronic signal. I should be surprised if a public department framing a direction in relation to the faxing or e-mailing of appeal and other such documents did not make allowance for an automatic extension of any period, the last day of which fell on a public holiday when the recipient's office was closed. However, these are matters for the Appeal Tribunal not for me.

[18] I am left facing the situation that I have been forced to the conclusion that the whole matter hitherto has been dealt with on an entirely unsatisfactory basis. There has been no effective sending of the appeal documents by post. There has, in my view, been no "delivery", within the meaning of Rule 35(1), to the Registrar at the office of the Tribunal of any of the documents required by Rule 3. On the other hand, the Registrar could hardly argue that "delivery" by fax was not to be regarded as service within the Rules, because a practice of permitting such "delivery" appears to have grown up and to have been accepted; nor was it so argued, although Mr Fairlie was tempted to resort to this argument when I tentatively drew attention to it. In any event neither of the respondents argued that the appeal itself, which was sent by fax "on or about 25 December" had not been properly served and "delivered", so if it were now to be argued on behalf of the respondents that "delivery" by fax was not delivery within the meaning of Rule 35(1) then I suspect that such a plea would be met by a plea of bar.

[19] I can put the case "By Order" in order to allow parties to make representations to me about the effect of Rule 35(5) and about the question as to whether or not the use of facsimile machines fell within the provision of Rule 35(1) and whether or not Rule 37(2) has any bearing upon deemed "delivery" by fax. That, unfortunately, would cause additional expense and might still to leave me with the view that none of the matters which I consider to be important had been properly ventilated by their Registrar or before Lord Johnston. On any view, there is nothing to indicate that the ruling by the Registrar that the appeal documents were out of time has been considered on any proper basis either by the Registrar or by Lord Johnston. If that should turn out to be the position, it would appear to be appropriate to quash the decision by Lord Johnston in order to allow appropriate consideration of the real but neglected issue. That would allow fresh representations to be made to him by the various parties on the true matter now in issue, namely whether or not the appeal was out of time in the circumstances which arose. This course would also enable his Lordship to hear argument about this matter at first instance rather than dealing with it in chambers, without submissions, and arriving at a decision "arbitrarily", as the Registrar's letter of 23 February 2000 (no.6/17 of process) bizarrely put it; he probably meant that the decision was discretionary.

[20] In these circumstances, I shall put this case out "By Order" to hear parties' further submissions on the situation. I shall then decide if it is appropriate to reduce the order pronounced by Lord Johnston on 21 February 2000.