United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MR A HILLIER (of Counsel) Instructed by: Mr G Jones Messrs Cartwrights Solicitors Marsh House 11 Marsh Street Bristol BS99 7BB


 


MR JUSTICE LINDSAY (PRESIDENT):

1. On 7th May 1999 the EAT received a Notice of Appeal from Mr Ralph Plettell. It says:

"The appellant appeals from … :

a) the allegation under Sec. 1 & 2 of the RR Act is dismissed – Date: 25/11/98

b) the order to pay £400 to the respondent. Date: 13/4/99."

Attached to that were many pages of handwriting that identify what Mr Plettell would wish to have considered as grounds of appeal.

2. The two decisions thus referred to were related. The 25th November 1998 decision was a decision of the Employment Tribunal promulgated that day. Mr Plettell's application against the respondent company, Rolls Royce Plc, was dismissed. He had made application for racial discrimination and victimisation. The later decision, 13th April 1999, was a decision on costs. At the end of the substantive decision, if I may call it that, the tribunal, in their decision promulgated on 25th November 1998, said this:

"24 … In accordance with Rule 12(7) the Tribunal is bound to consider whether to award costs against the applicant on the ground that he conducted the proceedings relating to the matter unreasonably in persisting in having the matter determined by a Tribunal. The matter will therefore be listed for a costs hearing."

Rule 12(7) deals with the case where a party has been ordered under Rule 7 to pay a deposit as a condition of being permitted to continue to participate in proceedings. There had here been such a requirement that Mr Plettell pay a deposit and, I am told, there was no appeal against that and certainly there is no indication that there was an appeal against that. Where there has been a requirement that a deposit under Rule 7, then Rule 12(7) goes on to say:

"… the tribunal shall consider whether to award costs against that party on the ground that he conducted the proceedings relating to the matter unreasonably in persisting in having the matter determined by a tribunal; but the tribunal shall not make an award of costs on that ground unless it has considered the document recording the order under rule 7 and is of the opinion that the reasons which caused the tribunal to find against the party in its decision were substantially the same as the reasons recorded in that document for considering that the contentions of the party had no reasonable prospect of success."

Bearing in mind the nature of the enquiry that therefore has to take place under a costs hearing where there has been an earlier order to pay a deposit, it does not seem to me that it is any necessary part, certainly not an inescapable part, of that costs hearing that there should be any great examination of the merits or demerits of the substantive hearing's decision. I make that point because the chief reason which Mr Plettell today gives for not having lodged a Notice of Appeal in time is that he waited until after the costs hearing, which, as I have mentioned, was a decision promulgated on 13th April 1999. The decision on 13th April therefore led to a need to appeal against the costs order, if at all, by 25th May and, as I have mentioned, the Notice of Appeal was 7th May. Therefore Mr Plettell is already entitled to appeal against the later costs decision.

3. What is in issue today is whether time should be extended to enable him to appeal against the substantive decision promulgated on 25th November 1998.
4. Time for appeal against the substantive decision therefore expired on 30th January 1999 and the Notice of Appeal, as I have mentioned, was not received until 7th May 1999. In other words, there was a massive delay which therefore requires a very compelling explanation.
5. The Registrar, after receiving that Notice of Appeal on 7th May indicated, as is standard form, that there had to be an application made for an extension of time, with reasons given. On 24th May 1999 application was made by letter from Mr Plettell. That led, on 1st July 1999, to the Registrar refusing the extension of time. On 4th July 1999 Mr Plettell appealed, in effect, to me to hear the matter.
6. Had it been the case that the appeal against the costs order necessarily put in issue the substantive decision of 25th November 1998, I think I would have seen some force in a belief on a litigant's part that it was appropriate to wait until the costs order was promulgated before appealing even against the earlier substantive decision. But Rule 12(7) does not seem to have that effect, as I have explained. Moreover, during the period after 25th November 1998, during which, in the ordinary course, a litigant could be expected to consider whether or not to appeal, Mr Plettell did have some professional assistance. I asked him twice whether it was his case that he was advised professionally that he could not appeal against the substantive decision until the costs decision had been made, but that was not his case. He said that it was rather for him to raise the subject of appeal with his advisers and that he had not done so within the time, no doubt (although he did not clearly say so) because, in his view, he could not do so until the costs decision was promulgated. But I see no basis for that belief. The notes that accompany decisions do not in any way suggest that where a costs order is awaited the substantive decision cannot be or should not be or may not be appealed in the meantime. Mr Plettell has addressed me today but it seems to me that, at most, the only reason that he gives for delay is that he had a belief that he could not appeal or perhaps would be permitted not to appeal until the costs decision was made. That, it seems to me, is a belief which had no true foundation.
7. Accordingly, directing myself in accordance with the decision in United Arab Emirates v Abdelghafar, I must dismiss this appeal against the order of the Registrar. In other words, there is to be, in respect of the decision of 25th November 1998, no extension of time and hence there can be no appeal against that particular decision.

[An application by Counsel on behalf of the respondents under Rule 34 of the EAT Rules 1993.]

8. The application for costs against Mr Plettell is refused.