United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 1092_93_1605

Appeal No. PA/1092/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 May 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(AS IN CHAMBERS)

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MR T D PENTON          APPELLANT

LONDON BOROUGH OF TOWER HAMLETS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

POTENTIAL APPEAL

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN

PERSON

For the Respondents MR P ROSE

(OF COUNSEL)

MR E GAWLIK

(LEGAL ADVISER)

Tower Hamlets

Mulberry Place

5 Clove Crescent

London E14 2BG


 


MR JUSTICE MUMMERY (President): Proceedings for unfair dismissal against the London Borough of Tower Hamlets were brought by Mr Terence Penton as long ago as the 19 December 1989 when he presented an application to the Industrial Tribunal. The case was contested. It was not determined until the Industrial Tribunal held at London North heard the case over a three day period, 9 December, 10 December 1992 and 6 April 1993. At the hearing Mr Penton was represented by Counsel from the Free Representation Unit and the London Borough of Tower Hamlets was represented by Counsel, Mr Rose.

The decision of the Tribunal was sent out on the 1 July 1993. The Tribunal unanimously decided that Mr Penton's application should be dismissed. The Notice of Appeal against that decision was not received at the Employment Appeal Tribunal until the 15 November 1993, that is well outside the period of 42 days allowed for appealing under the Rules then in force, that is Rule 3 of the Employment Appeal Tribunal Rules 1980. Mr Penton applied to the Registrar for an extension of time for appealing. By order dated the 11 January 1994 the Registrar refused the application. In coming to her decision she considered representations made on behalf of Mr Penton in letters written by Solicitors on his behalf, and also representations made on behalf of the London Borough of Tower Hamlets. Mr Penton was dissatisfied with the Registrar's decision. This is an appeal against the decision.

The facts which can be gathered from the representations made in the various documents are these. The Tribunal sent out the copies of the decision on the 1 July to London Borough of Tower Hamlets and to the Counsel who represented Mr Penton at the hearing. That Counsel did not send a copy to Mr Penton. He sent a copy of the decision to a firm of Solicitors, Messrs Hodge, Jones and Allen, who had referred the case to the Free Representation Unit when they gave advice to Mr Penton under the Green Form Scheme.

It appears that Messrs Hodge, Jones and Allen no longer considered themselves as acting for Mr Penton. They did not forward a copy of the decision to him. Mr Penton made various enquiries about the decision. It seems clear that Mr Penton did not personally know of the decision of the Tribunal until he received in the post a copy of the decision enclosed in an envelope sent by the Industrial Tribunal to him at his home address. The envelope is post marked with the date 22 October 1993. The Tribunal sent the decision to Mr Penton direct after he had made enquiries from the Industrial Tribunal by telephone. His telephone call had been precipitated by a call Mr Penton himself had made to the London Borough of Tower Hamlets to enquire about the decision. He was told by Tower Hamlets that they have received their copy of the decision. Hence his enquiry to the Tribunal direct and the sending of the decision to him by the Tribunal.

In those circumstances Mr Penton submits that this is one of the exceptional cases in which the Employment Appeal Tribunal should extend the time for appealing. He could not have brought the appeal before the 22 October because he was not aware of a decision notified to the parties. It was not his fault that the decision was not notified to him. The decision had been sent to the Counsel representing him who had passed it on to the Solicitors originally consulted by Mr Penton, but neither Counsel nor the Solicitors sent him a copy of the decision. He had no contact with any of the legal representatives before he was notified of the decision on the 22 October.

The appeal is opposed by London Borough of Tower Hamlets. On their behalf Mr Rose rightly submits that the cases on extension of time for appealing emphasise the importance of the strictness of the time table laid down in the Rules. The cases state that an extension of time will only be granted in rare and exceptional cases. He also reminds me that, as a general rule, the lapse or failure of a legal representative to deal with an Appellants' case in accordance with the Rules are not regarded as exceptional or rare circumstances. The remedy of the client in those cases is against the legal adviser who has failed to deal with the matter diligently.

Mr Rose went into the history of the proceedings. He submitted that there would be prejudice to the Council if the extension of time was granted and the appeal went ahead, because the matters complained of in Mr Penton's case go back a number of years and all but one of the witnesses have since left the employment of the Council. If the appeal were to succeed and were remitted to the Industrial Tribunal the Counsel would be faced with obvious difficulties. He made various submissions about the merits of the appeal and the potential difficulties of Mr Penton seeking to argue a case against certain findings of fact in the decision which could not be challenged on appeal.

I have considered these arguments. I emphasise that the decision I am about to make does not depart from the requirement that appeals that be lodged in the time limits set by the Rules and that it requires an exceptional case to justify departure. I do, however, regard this as an exceptional case. Mr Penton asserts, and there is no evidence to contradict this, that he was unaware of the decision before the 22 October. Thereafter he sought advice from a firm of Solicitors, Christian Fisher, who submitted the Notice of Appeal to this Tribunal with the covering letter of the 12 November 1993. Until the third week of October Mr Penton had not been informed that any decision had in fact been reached. Through an unfortunate series of events, for which it is difficult to apportion blame anybody, the decision did not reach him.

It is understandable that the Counsel who had represented Mr Penton on the appeal should send the decision when he received it to the Solicitors who had referred the case to the Free Representation Unit. It is understandable that the Solicitors who had referred the matter to the Free Representation Unit should think that they no longer had Mr Penton as a client and that it was not for them to send a copy of the decision to him. As for the Industrial Tribunal, it was proper for them to send the decision to the person who had represented Mr Penton at the hearing rather than to Mr Penton direct. The case is an unfortunate chapter of accidents and possible misunderstandings for which no one is to blame, least of all the London Borough of Tower Hamlets.

If an extension of time were not granted Mr Penton would labour under a real sense of grievance that he had been denied the opportunity of an appeal as a result of a series of accidents for which he was not to blame. For those reasons I shall therefore allow this appeal and extend the time for appealing until the 15 November, the date on which the Notice of Appeal was received here.