United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR JEREMY McMULLEN QC Messrs Harris Rosenblatt & Kramer Solicitors 26-28 Bedford Row London WC1R 4HE
For the Respondent	MR MUNASINGHE (of Counsel) Ms S Hughes Commission for Racial Equality Alpha Tower 11th Floor Suffolk Street Queensway Birmingham B1 1TT


 


MR JUSTICE KEENE: The respondent to this appeal, Mr Oommen, brought a claim against the appellants alleging racial discrimination and victimisation. However, on 20th November 1996 an Industrial Tribunal Chairman sitting alone at a pre-hearing review under Rule 7 of the Industrial Tribunals Rules of Procedure 1993 gave as her opinion that the originating applications had no reasonable prospect of success and, having made enquiry as to Mr Oommen's ability to pay, ordered him to pay a deposit of £100 on each application as a condition of continuing the proceedings. Mr Oommen was in fact present at that hearing on 20th November 1996. The Chairman signed the written order the same day, and it was apparently posted to the respondent's representatives on 22nd November 1996. The tribunal accepted that it was received by those representatives on 25th November 1996.

The order was made under Rule 7 of those Rules of Procedure which are themselves set out in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Rule 7(6) of those rules provides as follows:

" (6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit.

(7) If a party against whom an order has been made does not remit the amount specified in the order to the Secretary either-

(a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or

(b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,

the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates."

That latter subparagraph provides therefore the sanction to enforce payment under such an order. Although not required under the Rules, some guidance as to the meaning of Rule 7(7) accompanied the order in this case. Unhappily, as the tribunal later pointed out, it was inaccurate in putting forward too restrictive an interpretation of the time within which payment was required.

Mr Oommen attempted to pay the deposit by a cheque post-dated to 1st February 1997. That cheque was refused at the Central Office; he therefore applied for an extension of time to 4th January 1997, but that request itself was refused.

He also made numerous telephone calls to the finance officer at the Industrial Tribunals Central Office, a Mr Newlands. There was a conflict of evidence at the subsequent tribunal hearing as to the content of those calls, but the tribunal found as follows:

"6. The Industrial Tribunals Central Office computer record shows the Finance Officer what day is the first day on which he may take action following a failure to pay a deposit. That is the first day for him to take action, not the last day for payment. Be that as it may, Mr Newlands mistakingly took the view that the computer was in fact showing the last day for Mr Oommen to make payment and, despite his denials, we find on the evidence that he did impart that view to Mr Oommen during Mr Oommen's numerous telephone calls. We have not the slightest doubt that he told Mr Oommen that 13 December was the last day for payment. ..."

Mr Oommen then paid the deposit in cash on Friday, 13th December 1996. Mr Newlands was away on that day and a colleague of his took the cash from Mr Oommen and signed a receipt for it. The tribunal saw the receipt. The following Tuesday, 17th December, at the London (South) Regional Office the file was brought up and referred to the Chairman for striking out. On the Chairman's instructions the tribunal clerk enquired at the Central Office whether the deposit had been paid and was told that it had not. That was a mistake. The Chairman, as a result, struck out the originating applications as required by Rule 7(7) of the Industrial Tribunal Rules of Procedure.

Mr Oommen protested at this, and the Chairman treated that as an application for a review. The matter was referred to a full tribunal hearing on 22nd January 1997. As a result of that hearing the tribunal decided to revoke the original striking out order of 17th December 1996, and to grant an extension of time for payment of the deposit to 13th December 1996. That extension was granted under Rule 15 of the tribunal Rules of Procedure.

The extension was necessary because the tribunal also decided that the 21 day period under Rule 7(7) began on the date when the order for a deposit was posted to the parties, rather than on the date when it was received or delivered. Had the latter date been the proper interpretation of that rule, then no extension would have been needed because the order was received only on 25th November 1996 and payment was made within 21 days of that date.

The appellants now appeal against that decision on the basis that the power of an Industrial Tribunal to extend time under Rule 15 does not apply to Rule 7(7), the latter being a self-contained and mandatory provision. There is also a cross-appeal by the respondent on the ground that by virtue of s.7 of the Interpretation Act 1978, the date on which the order was "sent" to the respondent with the meaning of Rule 7 of the Rules was the date of receipt or delivery and not the date of posting. If that argument is right, then there was no need for an extension of time under Rule 15. Logically, that issue of the interpretation of s.7 and Rule 7 must come first and we shall therefore begin with that issue.

S.7 of the Interpretation Act 1978 provides as follows:

"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

By s.23 of the same Act, s.7 also applies to subordinate legislation such as the 1993 Regulations with which we are concerned, as well as to Acts of Parliament. The Industrial Tribunal Rules of Procedure do authorise the sending by post of all notices and documents required or authorised by the rules to be sent or given to any person: see Rule 20(3). Thus s.7 of the Interpretation Act is relevant in this case. Its effect is a matter of dispute.

For the respondent whose cross-appeal this is, Mr Munasinghe submits that where a litigant is sent notice by ordinary post requiring him to do something in legal proceedings the word "sent" should be interpreted as "received". Otherwise, he argues, the uncertainties of the post, particularly at certain seasons of the year and in certain parts of the country, may cause great injustice if there is delay or even non-receipt. He points out that such postal delays could eat substantially into the 21 day period, or indeed in some extreme circumstances it could extend beyond it. If the appellants were right and the respondent then did not receive the order at all, great injustice would result. But in any event he would not then know that he had to do certain things within a given time. That, submits Mr Munasinghe, explains why we have s.7 of the Interpretation Act 1978 and it should be applied here. In support of that, he relies upon the decision in Derrybaa Ltd v Castro Blanco [1986] ICR 547, a decision to which we will come in due course in this judgment. He emphasises that the consequences may be just as drastic when one is dealing with an order to pay a deposit which is delayed or goes astray, as in cases where such events occur to the notice of hearing which was the situation in the Derrybaa case.

The appellants in their skeleton argument on this issue argue that the second part of s.7 of the Interpretation Act only comes into operation in a case where, under the legislation to which s.7 is being applied, the document has to be received by a certain time. That argument has not been pursued orally by Mr McMullen on behalf of the appellants, but we shall nonetheless deal with it because it is set out in some detail in the documents lodged on behalf of the appellants, and also because it was also a matter to which the Industrial Tribunal applied its mind.

The proposition to which we have just referred is one which is said to derive from a passage in the judgment of Parker LJ in Regina v Appeal Committee of the County of London Quarter Sessions Ex parte Rossi [1956] 1 QB 682 at page 700. The passage reads as follows:

"The section, it will be seen, is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second provides that, unless the contrary is proved, that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play, and only comes into play, in a case where under the legislation to which the section is being applied the document has to be received by a certain time. if in such a case "the contrary is proved", i.e., that is the document was not received by that time or at all, then the position appears to be that, though under the first part of the section the document is deemed to have served, it has been proved that it was not served in time."

The argument is that the present case does not meet that requirement and that therefore s.7 of the Interpretation Act does not apply in relation to timing.

In our view there needs to be a degree of caution exercised in attaching weight to the precise words used by Parker LJ in that passage from Ex parte Rossi. If what he meant was that the timing provision contained in s.7 only operates where the time of service is material, either because there is a time limit for service or because time begins to run from that point for another step to be taken, then we would respectfully agree with his statement. That was the interpretation put on it by the Court of Appeal in Regina v Home Secretary, Ex parte Yeboah [1987] 1 WLR 1586, where Sir Nicholas Browne-Wilkinson V-C, as he then was, said at page 1593E:

"If actual receipt is necessary to enable the addressee to take some necessary step, then the word "sent" in the principal Act will be construed to mean "received"..."

The contrast is with cases such as Moody v Godstone RDC [1966] 1 WLR 1085, where the date of service of an enforcement notice under the Town and Country Planning Act 1962 was not material because the notice only took effect on the date stated in it, namely 1st July with 28 days from then for compliance. The date of posting and indeed the date of service itself did not cause time to begin to run.

We do not read Parker LJ's word in Ex parte Rossi as confining the timing provision of s.7 of the Interpretation Act 1978 solely to cases where there is a time limit on the service of the document in question, and as excluding cases where the date of service is highly material as a point from which time begins to run for some necessary action. It should also be born in mind that the case of Ex parte Rossi was not dealing as such with the timing of service. It was a case where service had not been effected at all. In consequence Denning LJ did not deal with the then equivalent of s.7 and Morris LJ simply said that the concluding words of the section mean that the sending of the document is deemed unless the contrary is proved to have been effected at the time at which it would have been delivered in the ordinary course of post: see page 697. It is also important to note that Parker LJ himself emphasised that the word "send" may be used in the sense either of dispatched or of delivered, and which is the correct interpretation depends upon the legislation and the object of sending the document: see page 701.

The natural meaning of s.7 is that where an expression such as "serve" or "give" or "send" is used in the legislation, then service is deemed to be effected if a particular method, namely, positing is used, and it is deemed to be effected at a particular time, namely, that at which the letter would be delivered in the ordinary course of post. The deemed time of service can be rebutted by proof to contrary, but the deeming provisions as a whole in s.7 do not operate if a contrary intention appears in the principal piece of legislation which is under consideration.

In the present case the relevant legislation, i.e. Rule 7(7) of the Industrial Tribunal Rules does make the day on which the order is "sent" to the party concerned highly material. That day is the starting point for the 21 day period during which he must pay the specified deposit or have his originating application struck out. The date is not a matter of little concern as was the case in Moody. It defines a period of time within which that party must act or suffer what Mr McMullen concedes to be Draconian consequences. Therefore, prima facie, the word "sent" in Rule 7(7)(a) of the Rules should be interpreted in accordance with s.7 of the Interpretation Act so as to mean "delivered". However, the appellants submit that that approach should not prevail. They point to the words in s.7 "unless the contrary intention appears" and argue that such is the case with Rule 7 of the Industrial Tribunal Rules.

This was an argument which found favour with the tribunal below. It accepted the submission that Rule 7 is aimed at achieving a predetermined date by which the tribunal must receive the deposit, so that the originating application may be struck out if the deposit has not been received by that date. It said in its decision:

"Certainty cannot be achieved in any other way."

In so saying, it distinguished the decision of the Employment Appeal Tribunal in Derrybaa Ltd v Castro Blanco [1986] ICR 547. In that case the Employment Appeal Tribunal was dealing with the Industrial Tribunal Rules of Procedure, although with Rule 5 which requires the notice of an Industrial Tribunal hearing to be sent to the parties not less than 14 days before the date fixed for the hearing. The Employment Appeal Tribunal there held that the word "send" in Rule 5 refers to the date when the notice is received or deemed to have been received under the Interpretation Act. In so concluding, it relied upon s.7 of that Act. At page 549 of the report Popplewell J delivering the judgment of this appeal tribunal said this:

"In the present case the Regulations provide an authorised service by post. In our judgment, that therefore requires this appeal tribunal and the industrial tribunal to have regard to the Interpretation Act 1978. If regard is had to the Interpretation Act 1978, it is the date of deemed receipt or actual receipt (it matters not in this case) to be applied and not the date on which it is sent and we see nothing in the Regulations to lead us to a contrary view. There is nothing to suggest that there is anything in the Regulations where the contrary intention appears."

They then applied their minds to various arguments about phrases appearing in other parts of the Industrial Tribunal Rules and found nothing there to indicate a contrary intention.

While we accept that this decision was dealing with a different rule from that with which we are now are concerned, it was nonetheless concerned with the same subordinate legislation, the Industrial Tribunal Rules, and therefore must be seen as more helpful in the task of interpretation than cases drawn from wholly different areas of the law.

Mr McMullen submits that the Industrial Tribunal Rules use a variety of different expressions. He points out that one can find the word "present" in Rule 1 and in other rules words such as "give", "send" and "receive". Indeed the word "deliver" can also be found. This, he submits, suggests that a contrary intention to the meaning in s.7 of the Interpretation Act must have been intended by the use of word "send" in Rule 7(7). That argument, if sound, was just as valid in relation to Rule 5, and we note that it did not find favour in the Derrybaa decision to which we have referred. For our part we cannot see that the variety of language used in the Rules takes one very far. It does not indicate that the word "send" in Rule 7 is being used to mean "dispatched" or "posting". Moreover, it appears to us to be just as important that a party at risk of being struck out should have adequate time to pay a required deposit, and not a time reduced by delays in the post, as that a party should have adequate time to prepare for a tribunal hearing. We do not accept that argument which appears in the decision of the tribunal below at paragraph 16 that:

"... giving parties notice of hearing has the specific purpose of enabling them to prepare their cases and to make arrangements to attend the hearing. That is a situation in which a 14 day period should not be cut short by failures of the post. That is a very different situation from a PHR Deposit Order where the Applicant has been present at the Pre-hearing Review and has heard the warning given. He is immediately put on enquiry if the written Order does not arrive and there is no question of preparation."

That argument was supported to some extent before us by Mr McMullen. The fallacy is that the party ordered to pay a deposit under Rule 7 may not have been present or represented at a pre-hearing review. He is not required to be there. The rule makes specific provision for written representations to be relied upon, and the Industrial Tribunal's powers under that Rule are not dependent on his appearance at the pre-hearing review. Consequently, the written order may be the first that he hears of the decision requiring a payment by him of a deposit. Consequently, we see the case of Derrybaa as having a direct bearing on the present issue and as providing helpful guidance.

Mr McMullen emphasises the need for certainty in administration of this procedure under Rule 7. We accept that there is slightly less certainty if the date at which the order is "sent" means not the date of posting but the date of receipt, or more precisely, of deemed receipt. But the reduction of certainty is not great. The Industrial Tribunal can proceed on the footing that delivery has been achieved in the ordinary course of post, unless and until the party proves the contrary. Thus if the order is sent by first class post it can assume that delivery has been effected on the second working day after posting: see Rules of the Supreme Court Order 65, para. 65/5/5. But if the date of posting were to be taken as the date when the order is sent for the purposes of Rule 7(7) it would have serious disadvantages from the point of view of the party being required to make the deposit. First it may not always be clear to him when the order was posted, but more significantly the 21 day period would run even if he did not receive the written order at all. Such an interpretation of the word "sent" in Rule 7 would provide no protection in cases of non-receipt of the order.

Reliance is placed by the appellants in their skeleton argument on the Court of Appeal decision in Ex parte Yeboah. That is said to relate to this issue of whether a contrary intention appears in the legislation. That was a case where the court found that a contrary intention did appear, thus excluding the operation of s.7 of the Interpretation Act. It was, however, a decision on the Immigration Appeals (Notices) Regulations 1972 and therefore its conclusion that the word "sent" in that context meant "dispatched" is not of great assistance. Even so, it is relevant to note the reason why the Court of Appeal there held that a contrary intention appeared. It was because Regulation 4 of those regulations required that the notice being sent should itself state "the time within which an appeal should be brought". The court took the view that that could not be stated on the notice if the word "sent" meant "received". That, however, is not the case here. The Industrial Tribunal rules do not require the order to state the date by which the deposit must be paid . That difficulty therefore does not arise in the present case.

We conclude that Rule 7(7) of the Industrial Tribunal Rules is to be interpreted in accordance with s.7 of the Interpretation Act 1978 and that the period of 21 days begins with the date of deemed service in the ordinary course of post unless the contrary is proved. In the present case, it was proved that the order was delivered on 25th November 1996, and the consequence is that payment of the deposit on 13th December was within the period of 21 days. The cross-appeal will therefore be allowed.

That is sufficient to dispose also of the appeal itself. But, having heard the arguments about the tribunal's powers to extend time under Rules 7 and 15, we would express briefly our tentative view on that issue. Our view is that there is no reason why the general power given to a tribunal Chairman by Rule 15 to extend time should not be applicable in cases falling within Rule 7. The wording of Rule 15 provides such a power to extend time "for doing any act appointed by or under these rules". There is no express exclusion of Rule 7 cases from that power, which applies to any act under the rules.

Mr McMullen argues that Rule 7(7) has its own mechanism for extending time and as a specific provision should be taken to exclude the general power to extend time. In support of that, he points out that there is a separate source of authority for what is now Rule 7(7) in the parent legislation from that which provides the authority for the Industrial Tribunal Rules generally. The former is derived from s.9 of the Industrial Tribunals Act 1996 whereas the latter would seem to come from s.7.

While we can see the argument that the wording of Rule 7 excludes the operation of Rule 15 because it makes provision for a further period of time not exceeding 14 days, that specific provision only applies if application for an extension is made within the original 21 day period. If Rule 15 were to be excluded, it would mean that there would be an absolute barrier to any extension of time once those initial 21 days had passed. The tribunal would be left with no discretion whatsoever. That, in our view, could produce manifest injustice, because the tribunal would have no power to deal with cases where a retrospective extension would be justified on the merits, including the situation where a party has been misled by the tribunal officials into believing that he had more time to pay than was in fact the case. The facts of the present appeal came close to that state of affairs. If it had been intended to create such an absolute bar, we would have expected to see express clear language excluding the operation of Rule 15, and no such language exists.

Some reference was made in argument on behalf of the appellants to the fact that the tribunal has power under Rule 11 to review a decision on certain grounds, and that this may be a mechanism for avoiding such manifest injustice. We do not find ourselves persuaded by that argument. As Mr McMullen agreed in argument, Rule 7 (7) imposes a duty on the tribunal if non-payment has been made of the deposit. The tribunal then has no discretion to extend time, even if injustice would arise because there has been, for example, some misleading by a tribunal official. Consequently the appellants accept that a review under Rule 11 could not overcome such an injustice because the decision of the tribunal under Rule 7 would not have been a discretionary one. Their decision is a mandatory one under the duty imposed upon the tribunal by Rule 7(7). Consequently if the tribunal has no power under Rule 15 to extend time, the review process could not achieve a remedy for any existing injustice.

Thus, although it is not necessary to decide this matter for the purposes of this appeal, we are of the view that the Industrial Tribunal was right in concluding that it had a power to extend time under Rule 15 of the Industrial Tribunals Rules in circumstances such as the present.

It follows from what we have said that the appeal will be dismissed and the cross-appeal will be allowed.