United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 983_93_0902

Appeal No. EAT/983/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R H PHIPPS

MR G H WRIGHT MBE

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MR G MURPHY          APPELLANT

R E A BOTT 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 MISS S MOOR

(of Counsel)

Clarkson Wright & Jakes

Valiant House

12 Knoll Rise

Orpington BR6 9PG


 


MR JUSTICE MUMMERY (PRESIDENT): This case was last before the Tribunal on 13 April 1994 when the appeal brought by Mr Murphy came on for a preliminary hearing.

For the reasons stated in the judgment given on the preliminary hearing, an order was made allowing the matter to proceed and various directions were given. The directions included the swearing of an affidavit by a Mr Timothy Cowen, the production of documents by the Respondents, REA Bott Ltd, and the swearing of an affidavit by Mr Murphy as to the circumstances in which he came to appeal by his notice of appeal of 1 November 1993 against the decision of the Industrial Tribunal notified to him on 21 September 1992. He was specifically directed to state the reasons why he had not appealed at an earlier stage and to exhibit to his affidavit any documents relevant to his explanation.

Following that order, several things have happened. An affirmation was made by Mr Timothy Arieh Cowan, a pupil barrister, in which he gives a detailed account of the circumstances in which he negotiated the settlement with the representatives of REA Bott Ltd, as referred to in our earlier judgment. He explains that at that time he had joined the Free Representation Unit, completed his FRU training and been ratified by the Committee of FRU to represent clients in industrial tribunal cases.

He explains specifically, in view of the allegations made by Mr Murphy and referred to in our earlier judgment, that he had never had any contact or dealings with the Respondents or their representatives, other than for the purpose of settling Mr Murphy's claim. He had never had any contact or dealings with the firm of solicitors, Baker & McKenzie, and he explains how Timothy Robert William Cowen, whose name was mentioned to the Tribunal by Mr Murphy, is a different person from him. He is not a relation of his. He is a person with whom he has had no contact or dealings. The person referred to by Mr Murphy as Timothy Robert William Cowen was called to the Bar in 1985, is in the employment of Baker and McKenzie, but is not the person who represented Mr Murphy in his Industrial Tribunal claim.

Mr Timothy Arieh Cowen also gives evidence of his position as a barrister by producing his Certificate of Call to the Bar on 14 October 1993.

Mr Murphy has sworn the affidavit, which we directed him to swear. He sets out in it the history of his claim and of the circumstances which have given rise to his grievance on the settlement of his claim, negotiated by Mr Cowen. Mr Murphy says that he made a claim for unfair dismissal to the Industrial Tribunal on 14 April 1992. He went to the Greenwich Law Centre to help him make the claim. They referred it to the Free Representation Unit. He refers to the contact that there was between LPMS, who were representing REA Bott Ltd, and Mr Cowen about a possible settlement of the claim. He said this:

"I saw Mr Cowen and made it clear that I had to win my claim for unfair dismissal so I could claim pension rights, or compensation for loss of pension rights.

I later discovered he signed a settlement which I had totally rejected and which was wholly in favour of my former employer REA Bott Ltd. I tried to get settlement stopped. I wrote to the Industrial Tribunals ..."

I pause to mention that we have been shown by Mr Murphy a letter of 2 September 1992, relating to his objections to the settlement. He says he also wrote to Phillippa Kaufmann at the FRU:

"the Industrial Tribunals said they couldn't reopen the case, that was after saying on the phone they would. Phillippa Kaufmann wrote me saying she had investigated my claims and found nothing wrong."

We have also been shown that letter. It is four pages long, giving a detailed account of the investigations made by Phillippa Kaufmann into Mr Murphy's allegations about the handling of his case by Mr Timothy Cowen. That letter is dated 20 October 1992.

Mr Murphy continues:

"Miss Phillippa Kaufmann wrote me saying she had investigated my claims and found nothing wrong. I wrote again to P. Kaufmann and ask who was Mr T Cowen and who did he work for and how many times had he represented the FRU. I got no reply, when I tried to contact P Kaufmann at the FRU. I was told she was no longer chairman at the FRU?

I wrote to the Greenwich Law Centre and ask for an investigation and was told at no time did they represent me and there was nothing they could do, strange considering they referred my claim to the FRU.

I contacted several solicitors (rather nievely) and was told there was nothing I could do so I had to accept it even though I knew it was wrong.

I had to accept the settlement after being told there was nothing I could do to change it, even though I knew I had been cheated.

Then about four months later I was working near the Bar Council, at (Bedford Row, London) and decided to try to find out the identity of Mr T Cowen, what a surprise when I discovered he was a Barrister, since 1985, and worked for a firm of company solicitors (Baker & McKenzie) who I knew when working for REA Bott Ltd also represented REA Bott Ltd (conflict of interest).

I again contacted the FRU and ask for an explanation and was told Mr Cowen was not a representative of the FRU. I ask for confirmation in an affidavit and could get no reply. I wrote to the Bar Council (Chairman) who said there was nothing they could do.

When the Bar Council and the FRU refused to sign affidavits confirming Mr T Cowen was a representative of the FRU, I could only assume they knew that the FRU was being exploited in favour of corporate power or large firms of company solicitors. Realising I would get no help from the legal system `for obvious reasons' I decided if I was going to get any justice, I would have to do everything myself, so I wrote to several Members of Parliament and made enquiries regarding Industrial Tribunals and the law, and I eventually wrote to the Employment Appeal Tribunal and ask to have my case investigated and appeal the settlement. I said that Mr T Cowen was a Barrister since 1985, who worked for a large firm of company solicitors who also represented my former employer REA Bott Ltd. I wrote to the EAT, and ask for an order for affidavits to be sworn by the Bar Council and the FRU, stating if Mr T Cowen was a representative of the FRU, my application was refused with explanation.

I had a preliminary hearing, [That was the hearing on which we gave the judgment referred to and made the order which has been complied with] when I made another application for the same affidavits to be sworn again it was refused.

I also made applications to the Industrial Tribunals, and the EAT, to examine my case file ... and maybe take some copies, which again was refused without explanation.

Mr T Cowen cannot be a representative of the FRU and so LPMS and REA Bott Ltd, must have known, and should be investigated."

Following that affidavit by Mr Murphy and the submission of documents accompanying it, Mr Murphy made further applications to this Tribunal for the production of documents and for the making of witness orders to secure the attendance before this Tribunal of Mr Timothy Arieh Cowen, Mr J W Jennings of LPMS Ltd, who had at one stage represented REA Bott Ltd, and the current chairman of FRU, Mr David Forsdick. Those requests were refused.

The matter has come on today for the full consideration of all the points made by Mr Murphy in his complaints. REA Bott Ltd have been represented today by Miss Moor. We heard detailed oral arguments from Mr Murphy by reference to the documents.

The essence of his complaint is this: that his case of unfair dismissal against REA Bott Ltd was settled despite his objection. His objection to the settlement was in relation to the matter of pension rights. The effect of the settlement is that he has neither received a pension from REA Bott nor has he received compensation for loss of a pension. The position is that, in order to secure a pension, he needed to serve for eight years. He was, he alleges, unfairly dismissed before he had completed eight years. He started the proceedings for unfair dismissal by the originating application in which he claimed compensation only. He did not claim reinstatement or re-engagement. In those circumstances there is no way in which he could actually have secured entitlement to be paid a pension, but he did still have a right to claim, as part of the compensation for unfair dismissal, an amount attributable to the loss of the pension, which he might otherwise have secured, had he not been unfairly dismissed.

Mr Murphy's repeated complaint, in the papers before us and on this hearing, is that the £3,500 paid to him in settlement of his claim expressly excluded pension rights, but that, as there is no express admission in the settlement signed by Mr T Cowen on his behalf that REA Bott Ltd had unfairly dismissed him, there is now no means of him obtaining compensation for loss of his pension rights. He says he made it clear at all times to his representative that he did not agree to a settlement which did not properly provide for the safeguarding of his claims in respect of his pension.

That is the essence of Mr Murphy's grievance. It is, we do not doubt, a sincerely held grievance. We have to decide this case, however, not by the depth of feeling of grievance but by the rules which govern decisions of Industrial Tribunals, the settlement of claims before those Tribunals and appeals from decisions to this Tribunal. The facts, as we understand them from the very full documentation before us, is that Mr Timothy Arieh Cowen did represent Mr Murphy on his claim. All references to Timothy William Robert Cowen are matters of mistaken identity and confusion. He is nothing to do with the case. Mr T Cowen settled the case on an agreement that Mr Murphy would be paid £3,500. Mr Murphy, believing that there was nothing he could do about the matter after making various objections and enquiries, has accepted £3,500. He did not appeal to this Tribunal against the decision of the Industrial Tribunal to dismiss the case, on the basis of a settlement, until he served his notice of appeal on 3 November 1993.

In those circumstances, Mr Murphy is long out of time for appealing against the decision of the Industrial Tribunal. The Rules which were then in force, (the Employment Appeal Tribunal Rules 1980, Rule 3), set a time of 42 days from the date on which full written reasons for the decision were sent to the Appellant as the period for appealing. The Tribunal applies a strict practice on time-limits. Time will only be extended if a satisfactory excuse is provided to the Tribunal for service of the notice of appeal out of time.

We agree with Miss Moor that, even if we treat the application by Mr Murphy as an application for leave to extend time for appealing, this is not a case where we can properly grant an extension. Despite the detailed affidavit that Mr Murphy has sworn, there is not before the Tribunal a good and sufficient excuse given for the delay which occurred between his receiving notification of the decision of the Industrial Tribunal relating to the settlement and his appeal to this Tribunal over a year later. We will only extend time in rare and exceptional cases. This is not such a case.

We do not decide this matter simply on that basis, however. Because of the serious allegations that Mr Murphy has made, we have conducted a full investigation on paper and orally today. We are satisfied that, even if an extension of time were granted for the hearing of this appeal, it would not succeed. It would not succeed for a number of reasons. The first is that we only have jurisdiction to hear an appeal from a tribunal decision on an error of law. There must be an error of law by the Tribunal, either in its decision of the case or in the way in which it has conducted the hearing. Mr Murphy's complaint is not in respect of any error of law by the Tribunal. The Tribunal received the COT3 form, signed by Mr T Cowen, on behalf of Mr Murphy and signed on behalf of REA Bott Ltd. That was received before they made the order dismissing the case. There was no error on the part of the Tribunal in acting on what was, on the face of it, a perfectly regular settlement of the dispute.

Mr Murphy's complaint is not that the Tribunal erred in law. His complaint is about the way in which the settlement of the case was handled by Mr Cowen and about the way that matters have been dealt with, or not dealt with, by the Bar Council, the Free Representation Unit, the Industrial Tribunal, Mr Cowen and this Tribunal.

We have no jurisdiction to make a decision in respect of those complaints. All we can say is that, having seen the full documentation and evidence, in the affirmation of Mr Cowen, the affidavit of Mr Murphy and a further affidavit produced by REA Bott from Mr Stephen Atkin, Finance Director of REA Bott, we are unable to see any substantial grounds for dissatisfaction. That is, however, a comment we make only on the basis of what we have seen. Those are not matters on which we have jurisdiction to make a definitive ruling.

In the circumstances, we accept the submissions made by Miss Moor that this appeal is out of time, that there are no good grounds for extending the time, that there are no reasonable grounds for arguing that there has been an error of law on the part of the Tribunal and that, in those circumstances, this appeal is dismissed.

Miss Moor, on behalf of REA Bott Ltd, has made an application for costs to be paid by Mr Murphy under Rule 34 of the Employment Appeal Tribunal Rules. The Appeal Tribunal has power to order costs where it appears 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. In those circumstances, the Tribunal has a discretion to order the party at fault to pay any other party the whole or such part as it thinks fit, of the costs or expenses incurred in connection with the proceedings. The estimated costs of solicitor and Council instructed by REA Bott in relation to the appeal is over £1,000. Mr Murphy opposes the order.

The view we have formed is that, after Mr Murphy had received the affirmation made by Timothy Arieh Cowen, explaining in the fullest terms how he came to act for Mr Murphy and settle his claim, it was unreasonable for him to continue with this matter. This is particularly so in the light of the comments in the judgment that was given by this Tribunal when it gave the directions on 13 April 1994. In our view, Mr Murphy has made serious allegations which he has not established. They have put the Respondents to a considerable amount of expense. In all the circumstances, we have decided that Mr Murphy should pay to REA Bott the sum of £500 in respect of the costs incurred by the Respondents on the appeal before us.

The order is that the appeal is dismissed, as being out of time and having no arguable point of law. Mr Murphy is ordered to pay £500 towards the costs of the Respondents on the appeal. The first instalment of £250 to be paid within six weeks of today and the second instalment within 12 weeks of today.