United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 396_93_1012

Appeal No. PA 396/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th December 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(As in Chambers)

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(1) MR P K DALE          APPELLANTS

(2) MR J ANDERS

BRITISH COAL CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR T O TROTMAN

(Of Counsel)

Messrs Adam F Greenhalgh & Co

Solicitors

Mawdsley Chambers

17 Mawdsley Street

Bolton

BL1 1LE

For the Respondents MR M J WRIGHT

(Solicitor)

Messrs Nabarro Nathanson

Solicitors

The Lodge

South Parade

Doncaster

DN1 2DQ


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Dale and Mr Anders against the decision of the Registrar on the 17th June refusing an extension of time for appealing against the decision of the Industrial Tribunal sitting at Liverpool on the 18th January 1993. The Tribunal unanimously decided that the Applicants had been fairly dismissed by the British Coal Corporation. That decision was notified to the parties on the 19th March 1993. The Notice of Appeal against that decision was not received at the Employment Appeal Tribunal until the 4th May 1993, four days after the time limit had expired under the Rules.

A request for an extension was made on the 17th May and that was rejected by the Registrar.

On behalf of Mr Dale and Mr Anders, Mr Trotman has presented a thorough argument. He cited the leading authorities on this topic and made detailed points as to why this is a case in which the Registrar ought to have granted an extension. He submitted that these Appellants have shown an "excuse" for the delay which is a "good" excuse. In order to decide that it is necessary to look at all the relevant circumstances, including the circumstances in which the Notice of Appeal was received at the Tribunal; the period of default; the prejudice to the Respondent; the nature of the appeal and the issues raised by it.

As regards the circumstances in which the Notice of Appeal was received at the Tribunal, Mr Trotman referred to the chronology of events, which occurred between the sending out of the Industrial Tribunal decision and the receipt of the appeal through the post.

After the decision was received on the 19th March 1993 a full copy of the written Reasons was forwarded to the clients and their Union, who had been funding the case, on the 23rd March 1993. On the 25th March 1993 the Union asked that Counsel's opinion be obtained. Counsel was instructed the next day. That was the junior Counsel who had represented the Applicants at the Tribunal hearing. Counsel's advice was received on the 15th April 1993 and passed on to the clients and to the Union. On the following day, 16th April 1993, the Union requested the opinion of leading Counsel. Leading Counsel, Mr Hendy, was instructed on the 20th April 1993. He provided an opinion on the 26th April 1993, which was forwarded to the clients and the Union for their instructions. Instructions were given on the 28th April 1993. The instructions from the Union were to appeal against the decision. A telephone request was made for the Form 1 to be forwarded to the Solicitors urgently from the Employment Appeal Tribunal. Form 1 was received. The appeal was lodged on the 30th April 1993 and received at the Employment Appeal Tribunal on the 4th May.

On that chronology of events Mr Trotman submitted that there had not been any deliberate or obvious delay on the part of his Solicitors in obtaining advice or in communicating it to the clients and to the Union. Unlike Martin v. British Railways Board [1989] ICR 32, this was not a case of solicitors being inactive for a considerable period and leaving matters until the last few days. There was constant professional activity on behalf of the clients and the Union throughout that period of March and April. There had been no serious delay after the receipt of leading Counsel's advice on the 26th April. That was close to the end of the 42 day period. There had not been any fault on the part of the legal representatives in the way in which they then dealt with the matter.

That led on to the period of default. The Notice of Appeal was posted on the 30th April; a Friday, Saturday, Sunday and Bank Holiday Monday intervened. If they had not intervened, the Notice of Appeal would have been received in all likelihood by the Tribunal only one day out of time, instead of four. Mr Trotman submitted that, in view of that very short period of default, there is no possible prejudice to the British Coal Corporation. He submitted finally that important issues for unions and employers, as well as for his clients, are raised on this appeal which concerns a problem common in the coal mining industry, man-riding. In his reference to the authorities Mr Trotman emphasised the question of default had arisen in the context of industrial relations. That was also a relevant factor to consider when looking at the period of delay. He pointed out that in the decision of Marshall v. Harland and Wolff [1972] ICR 97 Sir John Donaldson had said at page 100 that, although Courts are less willing to extend time in the case of appeals than they are with original proceedings, the Court may extend the time for a "good" reason. He said:

"It is of paramount importance, in dealing with industrial relations, that time-tables should be strictly adhered to. The amount of time allowed for appeals of this nature has been very fully discussed with all interested bodies, and it has been decided that it shall be 42 days - and 42 days means 42 days . ."

If, however, there were special features of a case and a "good" reason was given for the default, then the Tribunal might accede to a realistic application to extend the time for appealing.

Mr Trotman observed that the headnote to that decision, in its reference to extensions being granted "only in rare and exceptional circumstances", used language not in fact found in Sir John Donaldson's judgment.

In my view, those submissions for Mr Dale and Mr Anders could not have been put more thoroughly or persuasively than Mr Trotman has put them. I have to stand back, look at those arguments in total and ask whether a sufficient case has been made out for extending the time. In my judgment it has not.

Mr Wright for the British Coal Corporation highlighted certain features of the case which are highly relevant to a decision on this appeal. He pointed out that Mr Anders and Mr Dale were represented by lawyers throughout. They were aware of the time limits for appealing. The reasons advanced for the delay explain why the delay has occurred, but they do not constitute an excuse for the delay. It would have been possible, and would have been advisable, if, when the Solicitors came under the pressure of the time limit, they had contacted the British Coal Corporation and asked for their agreement to extend the time for appealing. If that was refused, they could apply to this Tribunal for an extension of time. The unfortunate fact in this case is that the Solicitors for the Appellants slipped up over the time limits. There was an oversight on their part which explains the delay but does not excuse it.

It is true that no prejudice to the British Coal Corporation has been demonstrated, or even asserted, by reason of the lateness of the Notice of Appeal. It is true that the period of the default is only a short one. But that is not the point. This Tribunal cannot emphasise too strongly that the time limit for lodging an appeal is clear. It is 42 days. It is generous. If it is not found to be sufficient, there are means available for extending it. This Tribunal will continue to apply the general principles contained in the judgment of Mr Justice Popplewell in Duke v. Prospect Training Services Ltd [1988] ICR 521 in dealing with applications of this kind. The time limits will be strictly enforced. Extensions of time for appealing will only be granted in exceptional cases. "In exceptional cases" means that very good reasons must be shown as to why the appeal was not lodged in time. Delay in obtaining legal advice, or legal aid, or matters of that kind will not, in general, constitute a good enough reason for failing to appeal in time. It is not simply a question of the parties having finality in the proceedings. It is a question of complying with rules laid down to ensure that the procedures of the Tribunal are as efficient and effective as possible.

For those reasons this appeal against the Registrar's decision is dismissed.