United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1301_95_2005

Appeal No. PA/1301/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th May 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

(AS IN CHAMBERS)

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A BALFOUR          APPELLANT

THE FOREIGN AND COMMONWEALTH OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R ALLEN Q.C.

Legal Department

Liberty

21 Tabard Street

London SE1 4LA

For the Respondents MR D ANDERSON

(of Counsel)

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

London SW1H 9JS


 


MR JUSTICE MUMMERY (PRESIDENT): On 20th September 1995 the Industrial Tribunal at London (South) sent to the parties the extended reasons for their decision in a case brought by Mr A Balfour against the Foreign and Commonwealth Office claiming unfair dismissal and seeking reinstatement to his post as a diplomatic service Grade 9 officer.

The extended reasons explained in detail, running to 19 pages, why they had reached the unanimous decision that Mr Balfour was not unfairly dismissed.

The Notice of Appeal was served on this tribunal on 3rd November 1995. It sets out three grounds in which it is alleged that the Industrial Tribunal erred in law.

The Employment Appeal Tribunal Rules 1993 Rule 3 lays down the requirements for the institution of an appeal from an Industrial Tribunal to this tribunal. The essential requirements are that there must be served on the Appeal Tribunal a Notice of Appeal within a period of 42 days from the date on which the extended reasons for the decision of the Industrial Tribunal was sent to the appellant.

This Notice of Appeal was served two days late.

An application was made to the Registrar for an extension of time. The Registrar invited written submissions. Two letters were sent by Liberty, who acted on Mr Balfour's behalf in the proceedings leading up to the hearing in the Industrial Tribunal, in the Industrial Tribunal hearing and on the appeal.

The first letter dated 14th November 1995 sets out the circumstances of the application for an extension of time. Representations were then invited from the Treasury Solicitor. The grounds of opposition advanced by him were set out in the letter of 28th November 1995. Final submissions were made in response by Liberty in the letter of 14th December 1995.

The Registar considered those representations and made an order on 19th December 1995 refusing the extension of time.

Liberty wrote a letter on 8th January 1996, giving notice of their intention to appeal against the Registrar's refusal.

This is the hearing of the appeal. Mr Allen appeared on the instructions of Liberty to present the arguments for allowing the appeal. Mr Anderson opposes the appeal on behalf of the Foreign and Commonwealth Office.

There is no dispute between Counsel about the principles on which this tribunal exercises the discretion in extension of time cases. As indicated in the recent practice direction and in United Arab Emirates v Abdelghafar [1995] ICR 65 the tribunal asks three questions in relation to the discretion: first, what is the appellant's explanation for the failure to comply with the time limits? Secondly, is the explanation advanced a good excuse for failure to comply with them? Thirdly, are there circumstances in the particular case which justify the tribunal in taking an exceptional step of granting an extension of time?

The explanation is contained in the two letters of Liberty already mentioned. The first letter explains how Mr Wadham (now the General Secretary of Liberty, and formerly the Director of the legal department) took full responsibility for the error. He explained that Counsel had drafted the Notice of Appeal in good time. It was necessary to make a few small amendments before it was sent off. Unfortunately, during the summer the General Secretary of Liberty, Mr Andrew Puddephatt, left the organisation and Mr Wadham, as legal director, was left to run the organisation as a whole. He explained that he was able to recruit a locum to look after some of the cases, but Liberty could only afford to pay the person to work part time. The solicitor employed had already booked three weeks holiday before he started work with Liberty. It was while he was on leave and Mr Wadham was looking after his work, as well as doing his own work, that the deadline for the service of the Notice of Appeal was missed.

Mr Wadham added an explanation of how Mr Balfour came to be represented by Liberty. He was not funded by Legal Aid as the contributions that he would have to make, if he got Legal Aid on the appeal, would be very substantial. He had been unemployed for many years since he had been dismissed. His wife was working. Her income was insufficient to provide for the family, including their children, and he could not afford to pay the contributions. Liberty and Counsel were acting pro bono in his case. A very substantial amount of work had been carried out for him free in a complex case which had already been to this tribunal and to the Court of Appeal and occupied the Industrial Tribunal for two weeks. The letter added that the hope that Mr Wadham's error would not prejudice Mr Balfour's position.

The Foreign and Commonwealth Office, through the Treasury Solicitor, opposed the application on the basis that the explanation offered was a frank admission of error by the legal adviser. That explanation, candidly given, did not constitute a good excuse for the default. Reference was made to earlier decisions of this tribunal, and to the most recent already cited, which had reiterated the point that overlooking a time limit on the part of the legal adviser is not an excuse. That is so, even though the legal adviser is under pressure of work and misses a deadline for that reason. The Treasury Solicitor's letter went on to say that there were no exceptional circumstances in this case. It was pointed out that there was a generous period for appealing, six weeks. The nature of Mr Balfour's representation through Liberty was not a relevant consideration. The grounds for extending time are not, in general, readily established on an appeal, as they may be at an earlier interlocutory stage prior to the substantive decision. Then a number of points are made relating to the merits of the appeal. The merits of the case are of little relevance on an extension of time application, when the issue is whether there should be an appeal hearing at all, not whether there is a sound basis for appealing.

Liberty replied with the final comments. Mr Wadham amplified the explanation and whether it was a good excuse. He made a number of points about the small nature of Liberty as an organisation and the huge task it undertakes. He stated, as every judge and lawyer knows, that Liberty does important work in protecting fundamental rights. It is not funded by the state. It does not get Legal Aid to support its work. It makes a major contribution to the bringing and arguing of important cases. He refered to the workload and repeated the point that Liberty had with the hiatus when the General Secretary left. He submitted, under the heading of excuse and exceptional circumstances, the points on the nature of Liberty's organisation, about the pressure of work, about the lack of prejudice to the respondent to the appeal in a delay of two days. As to the merits, Mr Wadham recognised that they are not a matter of great significance in an application for extension of time.

Both Counsel have been concise in their submissions. Mr Allen said that this was a case where he was unable to offer an explanation which would constitute an excuse. He placed his submissions entirely on the basis that this was an exceptional case. The exceptional features of it were, first, the extraordinary nature of the case, and secondly, the nature of Mr Balfour's representation.

I agree with Mr Allen that no one could call this a "run of the mill" case. The nature of the employment of Mr Balfour, the circumstances in which he was dismissed, and the particular procedural problems which have arisen from the claim of public interest immunity, make this a very unusual case. Unusual cases sometimes require unusual representation.

I accept the points made by Mr Allen about the involvement of Liberty, about the circumstances in which it does its important work and the problems that it had last summer when there were changes of personnel in the organisation. He repeated what Mr Wadham had said in the earlier letters, that there was no prejudice to the respondent in a Notice of Appeal being served two days late. He emphasised that he was not seeking in this case to establish a precedent whereby Liberty and similar organisations would receive some indulgence from this tribunal on time limits. Mr Allen accepted that the same rules apply to everybody, but relied on the extraordinary nature of the facts, the problems that the case had given rise to and the representation as an exceptional feature.

Mr Anderson responded to these points and referred to the Notice of Appeal for the grounds on which the appeal is brought. Although Liberty had represented Mr Balfour in the tribunal, both on the interlocutory proceedings and at the main hearing, it was not the only route for bringing an appeal. Legal Aid is available in this tribunal, even though it is not available in the Industrial Tribunal. He said that there was no reason for giving Mr Balfour different treatment for an out of time appeal, because the nature of his representative. The fact that there was no prejudice suffered by the respondent in the Notice of Appeal being two days late was not a valid consideration. Mr Anderson said this was a case where, as Mr Wadham admitted in the correspondence, a time limit had been unfortunately overlooked. The consequence was that the appeal could not be pursued, unless there was an extension of time. On well-established authorities it was not proper to exercise the discretion to grant an extension. He submitted that it cannot be relevant to an extension of time that the appellant's solicitor was employed by a non-commercial organisation, that that organisation was concerned with many cases on fundamental rights or that the solicitor handling the question had other responsibilities. Solicitors and other professional people are frequently put under severe pressure at work wherever they are employed, whether in the public, private and voluntary sectors, and whether they work in organisations or as sole practitioners. He submitted that there was no sound reason for making a special allowance for the nature of Mr Balfour's representation. He pointed out that there had been a lengthy hearing in the Industrial Tribunal. The tribunal had reached a unanimous decision. The Appeal Tribunal was entitled to take a strict line in relation to appeals from a decision on the merits.

I have reached the conclusion that the appeal against the Registrar's order must be dismissed. I agree with the submissions made by Mr Anderson in his skeleton argument and on the oral hearing.

I appreciate the important and valuable work by Liberty for people who are not for one reason or another able to obtain representation elsewhere. It has done a great deal of work in this case. It is unfortunate that the appeal cannot be heard, because the Notice of Appeal is two days late. But a strict line on time limits must be taken. Six weeks is a generous time. Rules are rules. Special rules cannot be made by the exercise of the discretion for particular types of appellant or for particular kinds of representative.

This tribunal enjoys the benefit of a very wide range of representation. There is no limit on it at all. Many people either do their own cases or are represented by organisations like law centres, the free representation units, Citizens Advice Bureaux. The rules apply to all of them. It would not be proper exercise of the discretion, however sympathetic to the particular case, to make a special rule for someone because their representation was otherwise than through a firm of solicitors and through counsel. There is no error in the decision that the Registrar has made in refusing an extension of time. The appeal is dismissed.