United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 712_95_0111

Appeal No. PA/712/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 November 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(As in Chambers)

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MR T LYON          APPELLANT

LISTWIN LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR R SUTTON

(Of Counsel)

Messrs Canter Levin & Berg

Solicitors

4th Floor

The Corn Exchange

Fenwick Street

Liverpool

L2 7RB


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr T Lyon against the order made by the Registrar on 18 July 1995. The Registrar refused an application by Mr Lyon to extend the time for appealing in proceedings against the Respondents, Listwin Ltd., started as long ago as 1990. Mr Lyon informed the bRegistrar that he wished to appeal to the judge against her refusal to extend time. This is the hearing of that appeal. Mr Lyon has attended to argue his case in person. Mr Sutton represents Listwin Ltd., and opposes the extension of time.

The background to the appeal and the application for extension of time is this. Mr Lyon brought a case of unfair dismissal against Listwin Ltd. He claimed that he had been unfairly dismissed on 16 November 1989. His claim, along with another claim brought by Mr T Hogan, was heard by the Industrial Tribunal in Liverpool on 9 and 10 April, and 11 May 1990. The Tribunal unanimously decided that Mr Lyon was fairly dismissed. So his claim failed. The reasons for that decision were sent to the parties on 3 July 1990. Mr Lyon's appeal against that decision was not received in the Appeal Tribunal until 14 June 1995. That is nearly 5 years after the decision was sent out to the parties. Under the rules of the Employment Appeal Tribunal, in force at the time of the original decision, Mr Lyon had 42 days in which to appeal; running from the date on which the full written reasons for the decision were sent to him. The period is the same as in Rule 3 of the current 1993 rules.

This Tribunal can grant an extension of time for an appeal. It has a discretion whether or not to grant an extension. In order to exercise the discretion, the Tribunal must be provided with a full explanation of the reasons for the delay in appealing. That explanation must amount to a good excuse for not appealing in time. If the Tribunal is satisfied there is a good excuse, then it may, in exceptional cases, extend the time. The crucial question is, therefore, what was Mr Lyon's excuse or reason for not appealing within time? He sets out his case in a letter to the Registrar of the Appeal Tribunal dated 24 June. He says that he fully appreciates the fact that he is out of time, but bases his application on a number of points. He says that we was not made aware of the correct procedure to be adopted. Secondly, he says that a solicitor on his behalf submitted a letter of Appeal within the time allowed. Thirdly, it took him another 4.1/2 years before he succeeded in a case which he had against Listwin Ltd., in the County Court. (He refers to it in the letter as the Crown Court.) Fourthly, he says he now has further evidence which shows that lies were told at the first hearing in July 1990. Those lies were in the evidence given on behalf of the Respondent company.

For those reasons, he argues that it is in the interests of justice that this appeal should now be allowed to go forward, so that his good name can be vindicated by the Appeal Tribunal. He is convinced that there has been a miscarriage of justice in the original decision. Mr Lyon had attempted to have the original decision reviewed by the Industrial Tribunal. He sent them a letter enclosing a detailed document requesting a review. That was dated 4 January 1994. The Tribunal Chairman notified the parties on 9 February 1994, that he refused the application for review, on the ground that it was not made within the time limit for a review. He refused to extend the time. In his reasons for that decision he referred to the grounds of the application. The essence of his grounds was that Mr Lyon had now obtained a judgment against Listwin Ltd., in the County Court and was able to produce fresh evidence to prove that the barrister and solicitor acting for Listwin Ltd., deliberately or without knowing, supplied and gave evidence to the Court which was not the whole truth. He asked for a review on the grounds of the interests of justice.

The Tribunal Chairman said that he had not been able to refresh his memory from the notes of hearing, because the file had been destroyed due to the length of time which had passed since the original decision. He considered it would be oppressive to Listwin Ltd., to extend the time. He dismissed the application.

On Mr Lyon's application to this Tribunal for an extension of time for appealing, the solicitors for the Respondent, objected strongly to the extension. They did not accept, as stated in their letter of 5 July 1995, that Mr Lyon was unaware of the time limit for appeal, particularly since he appears to have had the benefit of legal advice following the hearing. It appears that he was also liaising with the Regional Office of Industrial Tribunals. They add that it is their experience, (I would add that it is also mine) that the Regional Office of the Industrial Tribunals send out, with the decision, notes concerning the decision. Those notes include the relevant time limits for appealing. In their submission Mr Lyon is seeking to raise matters which he could and should have raised immediately following the hearing. It was not necessary they submit, for him to await the outcome of the other proceedings in the County Court. In any case, the matters he is seeking to raise are matters of fact, not law. Given the passage of time, it would in any case be inappropriate for the matter to be the subject of an appeal so long after the original decision.

At the hearing this afternoon, Mr Lyon repeated the points referred to in his letter of 24 June. He has drawn my attention to the fact that he was actively trying to appeal the decision, by writing letter to a number of different people and places, including the Lord Chancellor's Department, the Prime Minister, and Tribunal Offices in Liverpool, Manchester and London. When he repeated to me that he had put in a Notice of Appeal through a firm of solicitors a number of years ago, he showed me a letter written to him by a firm of solicitors on 20 June 1991. The firm are Bell Lamb & Joynson of Liverpool. Mr Bennett of that firm wrote to Mr Lyon a letter advising him on the procedure and grounds on which an appeal might be brought. As indicated in Mr Lyon's letter to this Tribunal when he applied for an extension, the advice he received was that none of the evidence which he wishes to bring forward appeared to have arisen since the hearing. It was all evidence that could have been brought at the hearing. He reminded Mr Lyon that an appeal could only be brought on a point of law. It was his opinion that, having read all the papers and reasons for the decision, it would not be possible to mount an appeal. He appreciated that Mr Lyon might feel that the findings of fact by the Tribunal were not correct, but they were findings that the Tribunal were entitled to make and which an Appeal Tribunal is not entitled to contradict.

It appears from that letter that no Notice of Appeal was put in at that time. Mr Lyon may have misunderstood the position in thinking there was. Secondly, the question of an appeal was considered at that time and was ruled out on considered legal advice. In those circumstances it is, in my view, difficult for Mr Lyon to argue that he did not know he had a right to appeal and did not have the evidence he needed for an appeal until the County Court proceedings were concluded at the end of 1994. I accept the submission made by Mr Sutton that in all the circumstances, Mr Lyon has failed to produce a satisfactory explanation for delay of this length. He has failed to identify any evidence which could not have been produced at the original hearing. I am also satisfied that what he has told me cannot amount to a good excuse for a delay. I would add that, even if it was, I would not, so long after the original decision, extend the time. It would require very exceptional circumstances to extend the time for appealing, when the appeal was not served until almost 5 years after the original decision.

The reason why it would require very exceptional circumstances is that it would be almost impossible to do justice to the Respondent in the case, so long after the event. There has to be finality in proceedings. When a decision has been made and left undisturbed for 5 years, I would regard it as almost impossible to reopen it. For those reasons I am of the view that the Registrar's decision was correct. The time for appealing should not be extended. This appeal is dismissed.

PA/712/95 MR T LYON v LISTWIN LTD

Application for Costs

Following the judgment dismissing the appeal from the Registrar's order, I have been asked by Mr Sutton to make an order under Rule 34 of The Appeal Tribunal Rules which empowers the Tribunal to order one party to pay the whole or such part of the costs as it thinks fit, where those costs have been incurred in connection with the proceedings, and the Tribunal is of the view that the proceedings were unnecessary, improper, or vexatious, or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings. Mr Sutton asks for the costs which his clients have incurred on this appeal, such costs to be assessed by the Taxing Officer.

In my view, it is a case where it is proper to make an order for costs. This appeal was unnecessary, involved unreasonable delay, and never stood any realistic hope of succeeding. In those circumstances, Mr Lyon will be ordered to pay the costs incurred on this appeal by Listwin. Those costs are to be assessed by the Taxing Officer.

I would urge the parties to try to agree a sum, because assessment by the Taxing Officer may involve yet further costs.