United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1312_95_2903

Appeal No. PA/1312/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th March 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON

MR A E R MANNERS

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MR P R JAMES          APPELLANT

THE BANK OF ENGLAND          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR JAMES

(in person)

For the Respondents MISS AMANDA SMITH

(Solicitor)

Messrs Freshfields

Solicitors

65 Fleet Street

London EC4Y 1HS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an application by Mr James to extend the time for appealing. He wishes to appeal against a decision of the Industrial Tribunal held in Bristol on 25th, 26th, 27th, 28th and 29th April 1994.

The tribunal heard an equal pay case brought by Mr James against the Bank of England. The tribunal dismissed the claim and gave extended reasons for their decision on 13th May 1994.

Under Employment Appeal Tribunal Rules 1993 the time for appealing is 42 days from the date on which the extended reasons are notified to the parties. Mr James did not serve a Notice of Appeal within that time. His Notice of Appeal was not received in the Appeal Tribunal until 8th November 1995. That is over 500 days late. He applied for an extension of time. The application is opposed by the Bank of England.

The tribunal is strict about time limits. The time will only be extended if the tribunal is given a full explanation of the reason why the time limit was not complied with. If that explanation constitutes a good excuse for the failure to observe the time limits, the tribunal has a discretion to extend the time; but extension of time is an exceptional step. It is exceptional because the rules are clear and they are there for a good reason. There must be an end to disputes. Six weeks is long enough for parties to make up their mind after they have been notified of the decision as to whether they are dissatisfied with it and wish to appeal, or whether they are prepared to call it a day.

The crucial question on this hearing is why Mr James did not appeal in time?

He submitted a skeleton argument, an affidavit and some bundles of documents. We are grateful to him for his submissions at the hearing this morning. He presented his own case. As we understand it, the background to the failure to observe the time limits is this. He conducted his case in the tribunal. Before he received the decision he wrote a letter to the Regional Office at Bristol on 12th May 1994. He referred to the case which had been heard in April 1994, just two weeks previously. He said this:

"The decision in this matter has not been disclosed to either party and in consequence the matter is still extant.

Over the period since the end of the Hearing I have made a careful study of the Industrial Tribunal procedure as laid down in the various statutes and in consequence I feel forced to make the following application.

I apply that the Hearing which took place at the ROIT, Bristol from the 25th April to the 29th April 1994 concerning this matter be set aside and that a new Hearing be convened to consider this matter afresh."

He set out, in clear terms, four reasons why this course should be taken. There were complaints that the hearing had been conducted following a legal procedure which produced an advantage for the Bank of England over him. He referred to his lack of knowledge of the procedure. He had failed to receive clarification during the hearing about the procedure. He says in paragraph 3 that by the Tuesday of the case (the second day) he was so concerned about the matter he requested a meeting with the panel before the day's hearing had begun. He made it clear that he was aware that, by a procedural trick, the respondent's barrister had placed him at an enormous disadvantage. The Chairman told him not to worry. He would come to no harm through it. He says in the fourth paragraph that in consequence, although he had not been warned of this legal procedural trick which had no place in the tribunal procedure, he had himself brought it to the attention of the panel before the second day's hearing commenced. He had no doubt that by that means, the Bank of England's barrister had caused him prejudice.

The trick referred to could have formed the basis of an appeal. Mr James did not appeal. His letter of complaint dated 12th May 1994, was treated by the Chairman of the tribunal as an application for review. That was refused for the reasons notified on 31st May 1994. The reason for refusing the application for review was that it had no reasonable prospect of success. The Chairman followed the procedure laid down in Rule 11(5) of the Industrial Tribunal Rules of Procedure.

Mr James complained about this. He said that he had asked for the hearing to be set aside. He had never received a response to that. What he had received was a decision on an application he had not made, a review application. This point is based on a misunderstanding on the part of Mr James. If a party is dissatisfied with the way that the matter has been heard in the Industrial Tribunal, or the way that it has been decided, there are two, and only two, courses open to the dissatisfied party. The first is to appeal. That means you must serve a Notice of Appeal within 42 days of the reasons for the decision being sent to you. The appeal can only be on a point of law. The second, and only other route open to the dissatisfied party is to apply under Rule 11 of the Industrial Tribunal Rules of Procedure for a review. That may be granted if there are reasonable prospects of success on the review, on one of a number of specified grounds, such as absence from the hearing or failure to notify a party of the hearing, or the obtaining of new evidence not available for use at the hearing.

In our view, Mr James's complaint about the way that his letter of 12th May 1994 was dealt with, or rather not dealt with, is based on a misunderstanding of the procedure.

We move to the next point. We asked Mr James a number of times during the course of this morning's hearing to tell us why he had not served a Notice of Appeal in time. He repeated what is already apparent from the papers he had filed. The reason he did not serve a Notice of Appeal in time is that he wished to appeal on the ground of bias. He had formed the view, after the recent experience that he had had on a preliminary hearing in this tribunal of another appeal, that he would not get anywhere with his complaint of bias unless he had overwhelming evidence. His view of his treatment by the Industrial Tribunal in Bristol is that he has been the victim of continuous bias. He wanted to have look at other cases dealt with by that tribunal, to provide him with confirmatory evidence of an overwhelming nature that bias was an influence in the tribunal's decisions in his cases against the Bank of England.

He referred to the background to the need for overwhelming evidence of bias. He referred to an affidavit which he swore on 10th March 1994, making complaints about various matters in relation to documents in his dispute with the Bank of England. He referred to the decision of the Employment Appeal Tribunal on 13th April 1994, when they were considering a preliminary hearing of Mr James's appeal against the decision of the Industrial Tribunal of January 1994 rejecting his complaint of sex discrimination against the Bank of England. Having heard what the tribunal said on that occasion, he realised that he would have to go away and get more evidence, if he was going to appeal on grounds on bias against his unsuccessful equal pay case. That is the central point of Mr James's application.

He says that he has now got this evidence. He has given us some idea of the matters of which he is complaining. He complains about the procedures adopted in the Industrial Tribunal. He complains about the conduct of the Bank of England and its legal advisers in the defence of the claim.

We have heard submissions by Miss Smith on behalf of the Bank of England. They are set out in detail in a skeleton argument. Her case is that no extension of time should be granted. The appeal is way out of time. Nothing that Mr James has said excuses him from complying with the time limits. She has referred to the Employment Appeal Tribunal Rules and to the legal decisions which lay down the principles governing the discretion to grant an extension of time. She said that the test (was there a good excuse for the default?) had not been satisfied. She added that all the allegations that Mr James was making were refuted. The position of the Bank of England is that they reasonably thought that, when Mr James did not appeal within 42 days of 13th May 1994, the case was over.

Miss Smith also pointed out that the allegations of bias which Mr James had made in this case had been the subject of censure by the Industrial Tribunal. She has referred to a decision by the Industrial Tribunal at Bristol on 20th July 1995, where the tribunal refused to strike out an originating application on the application of the Bank of England on the grounds that Mr James had conducted himself in those proceedings in a scandalous manner. That application was refused at a pre-hearing review. The part of the reasons which Miss Smith relied on is that when the attention of the tribunal was drawn to various allegations in letters written by Mr James, the tribunal Chairman said that the letters were offensive and amounted to conduct of the kind that is contemplated by Rule 13 of the Industrial Tribunal Rules. The Chairman asked Mr James whether he was prepared to apologise for his conduct. He agreed to do that. He gave a written apology in relation to the tone of the two letters in question, the 18th June and 3rd July 1995. He said that, in future, he would ensure that his emotions on this matter were kept in check. In the light of that apology that the Chairman exercised his discretion not to strike out the originating application. Mr James was also given a warning that some of the statements made in these letters might amount to a contempt. Miss Smith submitted that those matters should be borne in mind in relation to the way we exercise our discretion today.

We do not find it necessary to pay any particular attention to that. Mr James said that he was only apologising over specific letters. He had not given any general undertaking not to make allegations of the kind that he wants to make on this appeal.

We decide this appeal simply on this basis. Mr James has not satisfied us that his explanation for delaying in the service of the Notice of Appeal constitutes a good excuse for not appealing. If he thought that there was bias in the way that the tribunal hearing was conducted on his equal pay claim, then he should have made that allegation in the Notice of Appeal. That Notice of Appeal should have been served within six weeks of being notified that his claim was dismissed.

For those reasons, we refuse to extend the time. The consequence of that is that the appeal is dismissed.