United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 814_93_1002

Appeal No. EAT/814/93PA

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(In Chambers)

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MR J NICHOLAS          APPELLANT

SEALINK STENA LINE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J NICHOLAS

(In Person)

For the Respondents MR R NICOLLE

Messrs Brachers

Somerfield House

59 London Road

Maidstone

Kent

ME16 8JH


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the refusal of the Registrar to grant to Mr J Nicholas an extension of time in which to enter a Notice of Appeal against a decision of the Industrial Tribunal sitting at Ashford and notified to the parties on the 7th June 1993. The Registrar made her order on the 18th October 1993. Mr Nicholas informed the Registrar that he wished to appeal against that decision.

On the 15th January 1992 Mr Nicholas presented an Notice of Application to the Industrial Tribunal in which he complained of unfair dismissal from his position of a Grade 1, Crew Cook with Sealink Stena Line Ltd. He complained that he had been made "compulsory redundant" on the 31st December 1991 from employment which had begun on the 11th July 1989. He complained that he had been discriminated against because of his trade union activities, that the criteria for selection for redundancy was wrong and that the real reason for selection for redundancy was that he was the ship's union representative.

His complaint was resisted by Sealink, who put in a Notice of Appearance on the 3rd March 1992. The Notice of Appearance stated that dismissal was for redundancy. The details of the defence of Sealink are set out in the pages attached headed "Grounds of Resistance".

There was a hearing of the claim before the Industrial Tribunal at Ashford on the 9th, 10th, 11th and 12th November 1992 and on the 4th January 1993. For reasons notified to the parties, on the 7th June 1993, the Tribunal unanimously decided that Mr Nicholas was not unfairly dismissed. His complaint was rejected. The position, once the decision was notified, was that Mr Nicholas had 42 days in which to appeal. Rule 3(1)(a) of the Employment Appeal Tribunal Rules 1980, which was then in force, provided that:

"(1A) The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which full written reasons for the decision or order of the industrial tribunal were sent to the appellant. ."

In this case the 42 days from the 7th June expired on about the 19th July.

The appeal notice did not arrive in the Tribunal office until the 24th August 1993, long out of time. When it arrived it was signed by Mr Nicholas and dated 24th August. It had attached to it a lengthy type written document running to 11 pages setting out the reasons why he asked the Tribunal to allow his appeal. His Notice of Appeal was accompanied by a letter, also dated 24th August 1993, stating that he wished to appeal and requesting an extension of time.

The Tribunal has power to extend time under Rule 30 of the 1980 Rules, which is in very wide terms and states:

"The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal."

The applications are heard, initially, by the Registrar from whom there is an appeal to the Judge.

In order to decide whether I should allow this appeal, it is necessary to examine the circumstances in which the appeal was instituted out of time, to look at the practice and principles governing decisions to extend time and to apply those principles and practice to the circumstances of this case.

The facts are confused. I start with the letter of the 24th August, which accompanied the Notice of Appeal. Mr Nicholas stated the reasons why he sought an extension of time:

"I would also request an extension of time for the following reasons. After my Industrial Tribunal I was always under the impression that my trade union would represent me at appeal. As soon as the decision was known I travelled to London to see head office officials, of my union. They informed me that they would have me back in London in about a weeks time, to meet with the unions solicitor to go over the evidence bundle. This never happened.

On the Saturday before the deadline for appeal was up, I received a letter from my union that they were no longer prepared to represent me, this only gave me five working days to prepare an appeal. In reality for a person with no legal training, this would be impossible."

We now have obtained the letter which Mr Nicholas was sent by his Union on the 7th July 1993, within the period for appealing. The letter sent to him by the National Union of Rail, Maritime and Transport Workers, said:

"Your Industrial Tribunal

I write to advise you that having now considered this case in its entirety with the full report from the Union's Solicitors, it is clear that there is a less than 50:50 chance of succeeding with an appeal to the Employment Appeal Tribunal and the Union cannot therefore sanction any further action in connection with this case.

If you wish to proceed to an Employment Appeal Tribunal on a point of law, then you must submit your application in writing before the 16th July 1993, otherwise you will be outside the time limit for an appeal against the Industrial Tribunal decision which was dated the 7th June, 1993."

Going back to the letter of the 24th August, Mr Nicholas wrote:

"Two weeks before the deadline for appeal, I was worried as I had not heard from my trade union, I went to a solicitor for help, as I did not want to be out of time. The solicitor said they would be prepared to take up my appeal. I heard from my union, I telephoned the solicitor and informed her that my union had sent me a letter saying they were not prepared to take on my appeal. The next day the solicitor contacted me, and advised me, they were not prepared to act for me in the appeal. But as the deadline was only a few days away they would lodge the appeal for me in my name and I would have to take it from there.

I did contact the Employment Appeals Tribunal several times by phone, to establish whether or not the appeal had been lodged every time the computer was checked, no appeal had been lodged. The solicitor concerned does not even answer my calls. I have already wrote to your office, and you have the letter off my union as you can see they did not give me much time at all. There is nothing in writing between the solicitor and myself so really I have no avenue to go down. There may have been some confusion, as my union represented me at Tribunal I had no reason to think my union would not represent me at appeal."

The statements in that letter have been amplified by further documents. The Tribunal has traced in its own records a letter which Mr Nicholas wrote to this Tribunal on the 21st July 1993 in which he enclosed the letter he had received from the Union dated the 7th July. He also set out in that letter an account of the history of his dealings with his Union and with the firm of solicitors he had consulted in Broadstairs, Boys & Maughan, and concluded the letter by saying:

"As through no fault of myself my application is now out of time I would be grateful considering the circumstances if you would allow me an extension of time to lodge my appeal application."

The position is that Mr Nicholas notified this Tribunal just over a month before he sent in his Notice of Appeal of the circumstances in which he would be seeking an extension of time to present this appeal. The account given in that letter of the dealings with his solicitors is difficult to comprehend when regard is had to documents which have now become available during the course of the hearing of this appeal. It appears from documents now provided by the solicitors, and this has been confirmed by Mr Nicholas in the course of his presenting his appeal in person, that he consulted Boys & Maughan, Broadstairs Office, where a Miss Gill was working, on the 30th June, before he heard from the Union that they were not going to back his case.

An account of the circumstances in which he consulted the firm is contained in a letter, dated 4th February 1994, written by Boys & Maughan to the Solicitor now applying for legal aid on Mr Nicholas' behalf. The Solicitor is a Mr Chris Osmond of a firm of Solicitors called "Hatfields", in Dover. According to the letter of 4th February 1994 Mr Nicholas consulted Boys & Maughan on the 30th June. He was seen in a free interview by Miss Gill about his case. He brought in a large detailed bundle of paperwork from the original Industrial Tribunal case, which had been conducted by him with the assistance of a trade union. At the interview Miss Gill agreed to look through the paperwork in her own time and consult Mr Nicholas again. A second opinion was sought. It was then decided by the firm that they would not assist Mr Nicholas in the matter. However, Mr Nicholas decided he wished to appeal against the decision. Time was running short. There were only a few days before the time limit ran out. The letter states:

"Miss Gill was then off sick for a short period and the file was taken by another fee earner since Mr Nicholas had requested us [Boys & Maughan] to issue a Notice of Appeal on his behalf."

It is stated that Mr Nicholas' case passed very briefly through the office. It is asserted in the letter that an Appeal Notice was actually sent, not through "Recorded Delivery", but by ordinary post. It is then stated that Mr Nicholas took the letters away. As far as the Solicitors were concerned they had received instructions from Mr Nicholas to put in a Notice of Appeal within time, even though they were not prepared to act for him on the appeal. As far as they were concerned the Notice of Appeal had been given in time, but they were now given to understand by Mr Nicholas that the Notice had not been received at this office and that he was having to apply for an extension of time.

When the Solicitor's letter was produced for the first time this morning at the hearing it was agreed by Mr Nicholas and Mr Nicolle, who acts for Sealink, that further enquiries ought to be made to clarify ambiguities and omissions in the letter. With their agreement I adjourned the hearing, from the morning to the afternoon, so that a `phone call could be made, at my request to the Solicitors, asking them to fax a copy of any letter and Notice of Appeal in their files as evidence of what had been prepared on Mr Nicholas' behalf and submitted to this Tribunal, and also, if possible, to provide documentary evidence of the date on which the Notice of Appeal was sent from their office to this Tribunal. The response of the Solicitors was that they had to go to the archive of the firm in Margate. That would take some time, but they were able to fax through, later in the morning, a photocopy of a letter dated 5th July 1993 addressed to the Employment Appeal Tribunal, "Orbit House", 58 Victoria Embankment, London, ECAY OD5. The letter is headed "Urgent" and reads:

"Dear Sirs

Re: Mr J Nicholas

Please find attached the Notice of Appeal relating to the above-named's application for an Appeal.

Since we are not instructed to act on behalf of Mr Nicholas in this matter we would be most grateful if you would kindly forward all future correspondence to him direct.

Many thanks.

Yours truly, Boys & Maughan"

A covering letter has been faxed saying:

"I have traced the `file' of Mr Nicholas. In fact only one letter as attached was sent and no file was actually opened. Although it is our practice to keep copies of all documents on our files it would appear that no actual copy can be tracked down."

Regret is expressed at their inability to help further.

That is the extent of information relating to the circumstances in which Mr Nicholas' appeal came to be instituted long out of time. It is an unfortunate position. On behalf of Sealink, Mr Nicolle submits that no extension should be granted. The Registrar was right in the order made on the 18th October. This appeal should be dismissed. He submits that the plain fact is that Mr Nicholas did not comply with Rule 3(1A) of the 1980 Rules. Time limits for appealing are applied strictly by the Tribunal. Time limits are time limits. It is only in the rare and exceptional case that the Court extends time. Mr Nicol submits that this is not an exceptional case which would justify an extension. In particular, he contends that, in so far as any delays and errors have occurred side by legal representatives or trade union advisers they are attributable to Mr Nicholas. They are not grounds for granting an extension. If there has been any default on the part of Mr Nicholas' advisers the remedy is for him to seek redress against them, not to grant an extension of the time of appealing. Mr Nicolle pointed out the unsatisfactory nature of the information available; in particular, the difficulty of tying in the date of the copy letter which it is said, by Boys & Maughan, accompanied the Notice of Appeal on the 5th July. It is difficult to square those dates with the dates given in Mr Nicholas' letter to this Tribunal on the 21st July 1993. He points out that, in any case, the duty of a solicitor is not simply to send in a notice of this kind on time, but also to follow it up by checking that the notice has been received and the appeal registered. This duty exists on a solicitor even if he is giving a free service, not just when he is being paid to act on instructions. Mr Nicolle also points out the further period of delay of a month, which occurred after Mr Nicholas wrote to this Tribunal on the 21st July, before he ultimately sent in his Notice of Appeal. In support of his arguments Mr Nicolle referred to a well known decision of the National Industrial Relations Court, headed by Sir John Donaldson, in Marshall v. Harland and Wolff Ltd [1972] ICR 97 where it was held that:

"The time limit of 42 days for appealing must be strictly observed, and extensions of time for appealing will be granted only in rare and exceptional circumstances; where delay is being caused by an application for legal aid, [that is a delay by legal advisers] notice of appeal must nevertheless be lodged within time and application should be made to defer the hearing of the appeal."

In that case there had been a failure of solicitors to take the necessary steps to lodge the Notice of Appeal while the application for legal aid was being made. Delays by legal advisers are attributed to the Appellant and cannot be relied upon by him as a ground for seeking an extension.

Mr Nicolle is right in his statement of the general principles and practice of this Tribunal. There is no point in having time limits if they can be ignored as a result of a lax attitude in enforcement. Nevertheless, the Tribunal has discretion which can be exercised in appropriate cases where it is satisfied that, unless the power was exercised, there would be a risk of serious injustice. In this case I am satisfied that on the material now available, which was not available to the Registrar when she made her decision, this is one of those rare cases in which the extension should be granted on terms. The reasons I grant the extension and allow the appeal are as follows. It appears clear from all the documents that it was always Mr Nicholas' intention to appeal the decision of the Industrial Tribunal; he received a copy of the decision notified on the 7th June and took immediate steps to see if the Union, which supported his case in the Industrial Tribunal, would support an appeal. It took some time for them to come to a decision. He told me of a meeting that he had on the 18th June in London with a trade union official and legal adviser who expressed the view that there was no point of law, but they would consult the Union solicitors, Pattison & Brewer. It was not until the letter of 7th July that Mr Nicholas was notified of the final decision that the Union would no longer act in the matter. He received that letter on the 10th July.

The documents show that, as a matter of probability Mr Nicholas became anxious about the time passing before he heard from his Union. He consulted Boys & Maughan at the end of June and gave them papers. It appears probable, having regard to the copy of the letter produced in the course of today, that Boys & Maughan did send in a Notice of Appeal. This is not an easy decision because there is an incomplete picture. The Notice has certainly never been received here. No documentary evidence has been produced as to when the letter with the Notice of Appeal was actually sent by Boys & Maughan. All we know is that it was sent by ordinary post and that the Notice of Appeal had a covering letter. I am satisfied, however, that it is more probable than not that the Notice of Appeal was sent and for some reason or other never arrived.

I am influenced by a further fact, that this is not a case of a carelessness on the part of advisers attributable to Mr Nicholas. If one considers what redress Mr Nicholas would have if he were not granted an extension, it appears to me, on the information at present available, that it would be difficult for him to have any redress. There are cases where a solicitor has slipped up under pressure of work or by oversight in failing to put in a Notice of Appeal on time. In such a case he would have very little defence to a claim made by the aggrieved client deprived of the opportunity of an appeal. On the existing information that it would be difficult for Mr Nicholas to make any justifiable complaint against his Union, or their solicitors, since they advised him within time that they were not going to back his case and reminded him of the importance of getting in the appeal on time. It would be difficult for him on this information to seek any redress against Boys & Maughan since it appears from their version of the facts, which I am prepared to accept that they were consulted, gave advice about the prospects of appeal, agreed to put in a Notice of Appeal and did actually submit it on time, but through no fault of theirs it did not arrive. Their position is, perhaps, more vulnerable than the Union's because it appears, from their own account, that they sent the Notice by ordinary post, not "Recorded Delivery" and it appears that no steps were taken to follow the matter up. Nevertheless, I see substantial difficulties in the way of Mr Nicholas being able to hold either set of advisers liable for this unfortunate position. It has to be said that Mr Nicholas is open to some criticism in respect of the delay which passed between the 21st July, when he wrote to the Tribunal seeking an extension, and the further month which passed before he actually submitted his Notice of Appeal. He was, however, at that time acting on his own. It is obvious from the lengthy document attached to the Notice of Appeal that he spent a considerable amount of time putting together a document which sets out his complaints against the decision of the Industrial Tribunal. He has told me that he typed this out himself. It must have taken a long time for him to put it together, as well as to type it out.

Taking into account all these circumstances, I find this is a case which is very finely balanced, but, for the reasons mentioned, this is a case where I am satisfied there would be a serious injustice if an extension were not granted. On the other hand, I am of the view that there would be no serious prejudice to Sealink by granting the extension. They will, of course, lose the benefit of the time period, but that is contemplated in every case where for the exceptional reasons an extension might be granted.

I am concerned, however, that Sealink should be protected against incurring unnecessary expense and time in dealing with the appeal. What I propose to do is this: I will allow the appeal against the Registrar's order, I will extend the time for instituting the appeal, but I will direct that this appeal should be set down to be heard on a preliminary hearing.

I have read the papers in the case. It appears to me that there are serious doubts as to whether this appeal discloses an error of law. The Tribunal only has jurisdiction to deal with errors of law. It has no power to rehear the case or, in the absence of an error of law, to re-examine and reverse the findings of fact. If this is set down for a preliminary hearing it will be for Mr Nicholas, or if he gets legal aid, the lawyers representing him, to satisfy the Tribunal that there is an arguable case. If the Tribunal is not satisfied that there is a reasonably arguable case, the appeal will be dismissed on a preliminary hearing. As Mr Nicolle may already appreciate, on a preliminary hearing, a Respondent is not required to attend. A decision is made on the basis of submissions for the Appellant. No further costs need be incurred by Sealink in this matter, unless and until it is decided by this Tribunal that the case should proceed to a full hearing.