United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 751_94_1406

Appeal No. PA/751/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 June 1995

HIS HONOUR JUDGE J HULL QC

(IN CHAMBERS)

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PROFESSOR JOHN GRIFFITHS          APPELLANT

UNIVERSITY OF NORTH LONDON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR ON BEHALF OF           APPELLANT

For the Respondents

MR D J O'DEMPSEY

(Of Counsel)

Lawford & Co

102-104 Sheen Road

Richmond

Surrey

TW9 1UT


 


JUDGE HULL QC: In this case Professor Griffiths, as he now is, was employed by the University of North London as a Senior Lecturer in History. His employment began on 1 November 1973 and ended on 30 April 1992, in slightly complex circumstances. On 6 June last year the Industrial Tribunal sat at London (North) under the Chairmanship of Mr Heggs with two Industrial Members. Professor Griffiths, who was then regularly in New York and living there, appeared in person before them. They found that there had been no unfair dismissal. Their decision is headed Summary Reasons, and therefore the appeal would not normally be entertained by us because the Full Reasons have not been given. We have been told by the Industrial Tribunal that it is intended to stand as Extended Reasons and so therefore that is not a bar to its being considered.

It was their unanimous decision that Mr Griffiths' application to them was devoid of merit and that his complaint that he was unfairly constructively dismissed by the Respondents failed. That decision was duly promulgated and sent to the parties on 8 June 1994. In due course, on 25 October, after time had expired for appealing, Professor Griffiths did write asking for extension of time. The time for appealing had expired on 20 July and he had sent a Notice of Appeal received here on 29 July. The letter sent by Professor Griffiths dated 25 October 1994 stated:

"... I wish to apply for an extension of time...

I have already indicated that the reasons why my appeal arrived nine (9) days outside of the 42 day limit were due to the late reply from the Industrial Tribunals to my request for full details and to the extraordinary circumstances of living outside the UK. On average mail from the UK takes 10 days to 2 weeks to reach me. (One can only express surprise at that, from a gentleman living in New York.) That being the case it would be difficult, if not impossible for me to meet the deadline of 42 days since I had to obtain the relevant information for an appeal from EAT, the full details of the reasons for the decision of the IT of June 6th 1994, complete all the required information and submit it to EAT within the required time limit. I can understand that within Britain 42 days is usually more than sufficient time. Given the vagaries of the mail it is extremely difficult for me to meet that deadline from the US. However, as I think the postmarks indicate I did make every effort to make my application well before the deadline.

As to Messrs Lawfords claim that I have been "consistently slow" in responding to correspondence sent to me I can only say that this is yet another falsehood perpetrated by that company, is not demonstrated by their "chronology," and is in keeping with their particular methods of carrying out their business"

That was his application which came before the Registrar of this Tribunal on 7 November 1994 and Miss Selio dismissed the application for the extension of time. Professor Griffiths wrote again. He acknowledges receipt of the decision:

"... The decision took over a month to be delivered to me and demonstrates the grounds for my appeal for an extension of time to file my appeal against the decision of the Industrial Tribunal of 6 June 1994.

I am advised that I may request that my Appeal for an extension of time to file my Notice of Appeal be put before a Judge in Chambers which I hereby do. I hold that I did everything possible to ensure that my notice of Appeal be lodged within the required time period and that it was ONLY because of delays on the part of the Office of the Industrial Tribunals and the Employment Appeal Tribunal in furnishing me expeditiously with the necessary information that caused the delay, just at the EAT was tardy in providing me with its decision of my Appeal heard on November 7th 1994.

I contend, too, that I have been denied natural justice in the hearing of my complaint against the Polytechnic of North London in being denied my own counsel through denial of the rescheduling of my case, that there was prejudice and bias demonstrated at my Hearing by the Chairman, and that the spirit in which the system of Industrial Tribunals was originated has not been followed in his case."

He wrote again on 12 June and sent a fax, saying:

"that the fact that I am given three days notice by EAT for the Hearing on June 14th 1995 is further evidence of the delays I have incurred with ALL correspondence from the OIT and EAT.

that the "chronology", prepared by Messrs Lawfords, contains distortions that detract from my case;"

then he says there is a false letter, at least one, in the bundle of correspondence prepared.

"and therefore that in consideration of my case the necessary caution be taken when using these items."

When one looks at the decision of the Industrial Tribunal, it is apparent that there were lamentable delays in dealing with this matter. It started with his employment ending in 1992 and thereafter there were several attempts to get the matter on and they were not successful. I am certainly not going to decide, of course, who is to blame for all that but the Tribunal give details about that. There has already been serious delay.

The obvious comment is that if Professor Griffiths chooses to live outside the jurisdiction and is likely in those circumstances to find the time limits somewhat constricting, he should make arrangements, either by having an agent here in the form of a solicitor or other person to receive mail on his behalf and fax it if he cannot arrange that directly with the office of Industrial Tribunals and this Employment Tribunal or otherwise, for keeping himself fully informed of the progress of litigation in which he is, after all, dominus litis; he is the person in charge of this case, both when it was before the Industrial Tribunal and now when it is before the E.A.T. The other comment is an equally obvious one; as an intelligent man, he must see that the right thing to do about time limits, if they are going to be uncomfortably and unjustly constricting for him, is to make application within those time limits for them to be extended and explain matters. He must also know as an intelligent man, if one could put it like this, that the best is the enemy of the good. If one is going to have a perfect Notice of Appeal it may take a long time to draft. If one is content to say "well I am going to put the essence of my case on paper and if there is any fault found with it by the Respondents, I will try to deal with it by amendment", that can probably be done by a man of education like Professor Griffiths in the course of half an hour and it can duly be sent off in plenty of time.

Those are merely comments and I have to direct myself to the law. The law, with regard to extensions of time, of course is very restrictive. The leading case is Marshall v Harland & Wolff Ltd [1972] ICR 97. In that case, which is now more than twenty years old and has stood, so far as I know, uncriticised by any authority, Sir John Donaldson sitting with two Members gave a practice direction and the headnote reads:

"The time limit of 42 days for appealing from industrial tribunals to the Industrial Court must be strictly observed, and extensions of time for appealing will be granted only in rare and exceptional circumstances;...

In the course of giving his judgment, Sir John first of all referred to the issues which affect particularly the Respondents to appeals, if they are Employers:

"No business can be run, unless it is possible within a reasonably short time to rule off the books and say: "We have met our liabilities in respect of wages, etc. There are no further liabilities in respect of wages, redundancy payments or anything of that nature."

He goes on to deal with the ordinary practice of the courts in being very reluctant to extend time to appeal, much more reluctant than they are in the case of Tribunals and Courts hearing matters at first instance, or hearing interlocutory matters. He then says:

"Those reasons would, in the ordinary course of events-- and would hereafter, if a similar case came before this court-- undoubtedly lead this court to refuse an extension of time for appealing. 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...

... And it is perhaps right that all who are concerned with appeals to this court should be told once, but once only, that when this court lays down a time-table it intends that it shall be strictly observed."

That is exceptionally trenchant language for any court to use in respect of the exercise of its own discretion. However trenchant it may be, it has never been criticised by authority to my knowledge and it has recently been endorsed by the President of this Tribunal in United Arab Emirates v Abdelghafar [1995] IRLR 243 in which the learned President refers to the cases and gives fuller reasons even than Sir John did for the approach of this E.A.T. to such applications.

He refers, with approval, to the test being whether there are rare and exceptional circumstances and he says that one of the questions which the Tribunal has to ask itself is, are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time? Therefore, I have to direct myself that this is not an ordinary case of discretion in which it may be a case of balance of convenience; a case of balancing the inconvenience to the Respondents against the inconvenience to the Applicant to see where the balance of justice lies, as I would of course if it were a case of asking for extra time for a pleading, asking for the adjournment of a hearing or matters of that sort. It is a case of asking leave to appeal out of time, where there is a limit of which Professor Griffiths was perfectly well aware, or at any rate should have been perfectly well aware. He, as I say, is a gentleman of the highest education. So I ask myself whether there is in these facts any basis for saying this is a rare and exceptional case. In my judgment it is nothing of the sort. It is a perfectly straightforward case in which a highly educated man has adopted what the Tribunal thought was a misconceived view, against which finding he desires to appeal. By his own choice he is living and working outside this country. He makes (to me) the incredible statement that it takes a month or more for mail to reach him. He makes no arrangements, so far as one can see, to expedite matters, until his most recent letter which has been faxed.

It seems to me that it would have been perfectly possible for him to do all that a man of education should to make quite sure that his appeal was effective, properly filed, properly dealt with. There are no circumstances shown here under which, on the authorities, I could possibly exercise my discretion in his favour. Therefore this application and this appeal from the Registrar must fail and must be dismissed.

PROFESSOR JOHN GRIFFITHS v UNIVERSITY OF NORTH LONDON PA/751/94

COSTS

I have come to the conclusion, having heard Mr O'Dempsey, that indeed this was an appeal which, if it had been entertained, was unlikely to succeed and indeed much of what is set out by and on behalf of the would-be Appellant is quite clearly incapable of supporting an appeal.

In addition, it appears to me that the present application is unnecessary and unreasonable and that the reason that this appeal was not prosecuted timeously is neglect by the Appellant.

It is just to say that there has been unreasonable delay and unreasonable conduct in bringing and conducting these proceedings and, in those circumstances, I have a discretion whether to award the whole or any part of the costs to the Respondents.

I think it would be right to do so in all in the circumstances. I have glanced at the Decision. I do not rest on that, I rest on what I have read concerning this application for extension of time and what has been done in the course of the appeal. It is not the practice, as I understand it, to order costs to be taxed because this Tribunal has no mechanism for taxing costs and I think it is most convenient, particularly as the Professor is resident outside the jurisdiction, for me to arrive at a sum by way of assessment. I do so not on the basis of indemnity; it seems to me that I ought to arrive at a sum which errs, if it does err at all, on the low side. It seems to me, and I am not intending to insult either solicitors or counsel in saying this, that it is rather unlikely that they would work for taxed costs and certainly unlikely that they would work for the sort of costs that are assessed. I think the right approach is for me nonetheless to assess them on that basis and it seems to me that to obtain the services of counsel and solicitors here on the meanest possible basis on which competent counsel and solicitors could conceivably be instructed, a sum of £250 is the least that one can possibly think of; and I therefore think that the costs should be assessed by me in the sum of £250.