United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 826_93_0710

Appeal No. PA/826/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th October 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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MR C BUCKLAND          APPELLANT

WOOLWICH PROPERTY SERVICES          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R ALLEN

(OF COUNSEL)

For the Respondents MR J CUGLEY

(Company Solicitors)

Woolwich Property Services

Limited


 


MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal against the Order of the deputy Registrar on the 1st December 1993. He refused to accede to the Application made by the Appellant, Mr Clive Buckland for an extension of time in which to enter a Notice of Appeal against a decision of the Industrial Tribunal held at Ashford on the 30th April and 15th June 1993.

The Industrial Tribunal, for full reasons entered in the Registrar on the

6th July 1993, unanimously decided that Mr Buckland was fairly dismissed by his former employers, Woolwich Property Services Limited, the Respondents to the Application in the Industrial Tribunal and the Respondent to this Appeal. His Application was therefore dismissed.

The Notice of Appeal against that decision was not received in this Tribunal until the 1st September 1993, though it was signed and dated by Mr Buckland on the 23rd August 1993. It was received in the Tribunal under cover of a letter dated 27th August 1993 from a firm of solicitors, Messrs Franklins, who stated:

"Please find enclosed a Notice of Appeal from Decision of Industrial Tribunal on behalf of our client, Mr Clive Buckland."[and in manuscript underneath words are written] "(acting in person)."

The Appeal Tribunal pointed out to Franklins that the Notice of Appeal was out of time. Franklins replied to the Industrial Tribunal on the 13th September, as follows:

"Our client wishes to extend the time within which to lodge his Notice of Appeal. The Notice of Appeal was received by you on 1st although it was in fact posted from this office on 27th August - five days before.

Our client wishes to apply for Legal Aid but he has decided that rather than wait he will have to issue his own Notice of Appeal. He has at all times been acting on his own. We have merely given him some advice and forwarded his application. He has put in a great deal of time and effort into considering the grounds for the appeal and in drafting the appropriate Notice and in the circumstances, we shall be grateful if you will extend his time."

The Notice of Appeal was 15 days out of time.

The question which arises on the Appeal from the refusal of the deputy Registrar to extend time is this; has a good excuse been shown by Mr Buckland for extending his time for appealing? The decisions of the Appeal Tribunal on the power to extend time lay down that it will only be extended in exceptional circumstances. It is not sufficient to produce an explanation. The explanation produced must actually constitute a good excuse for not complying with the six week time limit. The emphasis in the Decisions is on the importance of observing time limits. Many explanations which have been put forward from time to time, including waiting for the result of an application for Legal Aid, have been held not to constitute a good excuse. It is necessary, in order to decide whether there is a good excuse, to look at all the relevant circumstances. In looking at the relevant circumstances, I have been assisted today by Mr Allen, who appeared on behalf of Mr Franklin. He has made submissions on the Appeal. In addition, Mr Franklin has added explanations and submissions of his own.

The Appeal has been opposed by Mr Cugley on behalf of Woolwich Property Services. A number of points have been made by Mr Allen, arising out of the chronology of events and the reasons why various things were done or not done at various times. The starting point is that, although the Decision was entered on the Register on the 6th July 1993, it was not in fact sent direct to Mr Buckland. The Industrial Tribunal sent the decision to Franklins. Mr Allen has shown me a letter from Franklins to Mr Buckland, dated 9th July, which shows that the copy of the Reserve Decision received by them. On that date it was sent to Mr Buckland. I am told that he received it on the 11th July. I pause to say that a point was made Mr Allen, as a technical point, that the time for appealing had not in fact started to run, because the Industrial Tribunal had not complied with its own rules. Rule 9(6) of the 1985 Rules, then in force, requires a copy of the decision entered on the Register to be sent to each of the parties and to the persons entitled to appear, who did so appear. He makes the point that the Decision was sent to Franklins who were entitled to appear, but did not in fact appear, at the Hearing, which was conducted by Mr Buckland in person. That fact was noted on the record of attendances of parties and witnesses at the Hearing on the 15th June. And The Industrial Tribunal, despite Mr Buckland's appearance in person, did not send the decision to him, they sent it to Franklins instead.

In my judgment, this point does not assist Mr Buckland. The question whether a Notice of Appeal is within time or not is governed by the Employment Appeal Tribunal Rules. They provide that an appeal may be instituted 42 days from the date on which full written reasons for the Decision or Order of the Industrial Tribunal was sent to the Appellant. The Appellant is Mr Buckland. When he presented his originating application to the Tribunal, he stated that he had a representative, Mr Peter Devlin of Franklins. The address of that firm in Abingdon was given. There was no evidence that any written notice was given by or on behalf of Mr Buckland to the Industrial Tribunal of a change in that state of affairs. In those circumstances, the Industrial Tribunal was entitled to act, on Rule 17 of the 1985 Rules, which provides that:

"All notices and documents required or authorised by these rules to be sent or given to any person, may be sent by post or delivered at [and then it says in (d)] "in the case of a notice or document directed to a party, his address for service specified in the originating application" [and it is then provided at the end] "and if sent or given to the authorised representative of a party, should be deemed to have be sent or given to that party." [and sub- paragraph (4) provides] "a party may at any time by notice to the Secretary of the Tribunals or to the other party or parties wherever appropriate to the appropriate conciliation officer change his address for service under these Rules" [all these provisions are governed by 17(1) which provides] "any notice given under the Rules should be in writing."

The position is that, as far as the Industrial Tribunal is concerned, Mr Buckland had named a representative. The Industrial Tribunal were within the Rules in sending the decision to that representative, since there is no evidence that they received written notice, changing the address for service, or notifying the Industrial Tribunal that Mr Buckland had begun to act in person in place of Franklins.

Mr Allen pointed out that Mr Buckland had had a conference with Franklins on the 27th July. He intended to appeal and in fact a letter was sent by Franklins on the 2nd August to Woolwich Property Services notifying them of intention to appeal. Franklins wrote:

"Our client believes that there are grounds to appeal the decision of the Industrial Tribunal. Accordingly he is writing to the Employment Appeals Tribunal to obtain the relevant forms."

Mr Allen makes the point that Woolwich Property Services were aware, within the 42 day period, that Mr Buckland intended to take the matter to the Employment Appeal Tribunal.

Woolwich Property Services replied on the 4th August, acknowledging the letter, pointing out that the appeal must be based on a point of law, not fact, and that if, notwithstanding that caveat, Mr Buckland was minded to appeal, Woolwich looked forward to receiving a Notice of Appeal with full particulars of the grounds. Mr Cugley, who wrote the letter on behalf of Woolwich Property Services, pointed out that the Woolwich would be requesting a Preliminary Hearing of the Appeal. Mr Allen submitted that there really was no surprise to Woolwich that there was an Appeal in this case. Mr Allen then said, on instructions, that Mr Buckland made contact with the Employment Appeal Tribunal early in August to obtain the Appeal forms. Although there is no record on the file of the EAT of a written Application, it appears likely that such an Application for the forms was made, since copies of the Notice of Appeal and notes for guidance of Appellants have been shown to me.

The position was that the forms were filled in by Mr Buckland and returned by him to Franklins who sent them to the Tribunal on the date mentioned, in the envelope stamped 27th August. In those circumstances Mr Allen submits that this is a case which should be regarded as one with a good excuse for being out of time. The Decision was not sent to his clients direct in the first place. The Respondents knew of the intention to appeal, there was contact between Mr Buckland and the Employment Appeal Tribunal in relation to the provisions of the Appeal forms. In those circumstances, I should reverse the decision of the Registrar.

I am not persuaded that, a case has been made out for a good excuse. I am grateful for the observations that Mr Allen had made. I am more impressed by the strength of the points made by Mr Cugley, in arguments today, supplementing written submissions to the Registrar.

In my view, the fact that there might have been an application for Legal Aid and some delay with that, or misunderstanding about it, cannot constitute a reason for not getting in the Notice of Appeal on time. Mr Cugley made points about prejudice to his client. That is of little weight. More weight is attached to the fact that time limits should be observed, unless there is a good reason for not having done so.

A further point emerged in Mr Cugley's submissions. Mr Buckland is also out of time for appealing against the deputy Registrar's decision. That was dated the 1st December. It was sent on the 2nd December. It appears from the file that it was not until May that Franklins wrote to the Employment Appeal Tribunal inquiring whether there was any way in which the Decision of the 1st December could be altered. No satisfactory explanation has been produced by Mr Buckland as to why there was such a long delay. The time limit for appealing against the Registrar's decision, which can be extended in appropriate cases, is only five days.

I have also looked at the grounds of the Appeal, but I do not find it necessary to express any view as to how strong they are. In my view, there has not been a satisfactory answer to the crucial question whether there was a good excuse shown for not appealing in time. My final word on this is that there may well be another explanation for what has happened here. As Mr Allen pointed out:

"the time for getting this Appeal in fell within a holiday period."

It may also be the case that Mr Buckland was doing some things on his own and Franklins were doing other things for him and that led to misunderstanding or confusion. The result was failure to appreciate the importance of putting in the Notice of Appeal within the 42 days.

The matter can be very briefly stated. If one looks at the letter of Franklins applying for the extension of time, no good reason is stated in that letter which justifies the failure to observe the time limit. Nothing said since then has produced a good reason.

I am sorry, Mr Buckland, to dismiss your Appeal. You may have received advice already that you may have a right to complain to somebody else about what has happened. I am afraid that as far as the Tribunal is concerned, no appeal can be brought. The appeal is dismissed.