United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK

1. This is an appeal by Mr Brown against an order of the Registrar dated 1 January 2002 striking out his Notice of Appeal in the following circumstances.
2. The Appellant commenced employment with Birmingham City Council (the Council) in November 1992. During that employment he was a member of the Trade Union UCATT. In 1996 and 1997 he presented a total of 5 originating applications to the Birmingham Employment Tribunal. The complaints were brought under the Race Relations Act 1976 against a combination of Respondents including the Council, two of its employees, UCATT and an official of that Union, Mr Cunningham.
3. The complaints were combined and were finally heard by a tribunal chaired by Mr R B Hare over a number of days between August and December 2000. The upshot, recorded in a decision with very full extended reasons, dated 22 January 2001, (the Liability Decision) was that the Appellant succeeded in one complaint only, brought against UCATT and Mr Cunningham. The remaining four complaints were dismissed. The Tribunal adjourned the question of remedy in the successful complaint and also applications made by the Respondents for cost orders against the Appellant. There is now no appeal against the liability decision. The Appellant's application for an extension of time for appealing that decision having been refused by the Registrar on 7 August 2001 (PA 641/01).
4. The matter came back before the same Tribunal on 21 May 2001. Again the result of that hearing may be shortly stated. Compensation orders were made in favour of the Appellant against both UCATT and Mr Cunningham. Secondly the Appellant was ordered to pay 40% of the costs of each of the Respondents on the standard basis; those costs to be the subject of a detailed assessment if not agreed (the Costs Order). The Tribunal's reasons for those conclusions are set out in a decision with extended reasons dated 15 June 2001 (the Remedies Decision).
5. By a standard form Notice of Appeal dated 25 July 2001, the Appellant appealed against the costs order only. The purported grounds of appeal were in these terms:

(1) Erred in law

(2) Misdirected in law – self-misdirected

(3) Decision was against the course of natural justice

(4) Decision was perverse

6. Those grounds lack any particularity. Accordingly the Registrar directed, by letter dated 7 September 2001 that the Appellant provide further and better particulars of the Notice of Appeal, clearly identifying the points of law raised in the appeal and reference was then made to the Employment Appeal Practice Direction paragraph 2(3) and (5). Those particulars were to be provided by 24 September.
7. On 24 September the Appellant faxed a letter to the Employment Appeal Tribunal seeking an extension of time, at least 28 days, in which to provide the particulars. His ground for that application was that his brother was seriously ill in hospital and his attention was understandably focused on that family crisis.
8. Sympathetic to the Appellant's circumstances the Registrar, by order sealed on 5 October 2001, required the particulars to be delivered within 14 days, that is on or before 19 October, failing which the Notice of Appeal would be struck out.
9. Sadly, the Appellant's brother died on 1 October 2001. He did not then file further and better particulars for his grounds of appeal until he faxed a copy of those particulars just after midnight on 20 October.
10. Having considered further representations in writing from the Appellant and the Respondents, the Registrar struck out the Notice of Appeal by order dated 15 January 2002 for the reasons there set out; hence this appeal before me.
11. Today Mr Brown does not appear, neither do the Respondents. He asked me in a letter, dated 4 June 2002, to read with compassion his letters to the Registrar dated 23 September and 12 December 2001, in which he refers to the tragic events concerning his brother. Having done so I regret that I am unable to conclude that the timing of those events provides a good excuse for his default in complying with the unless order made on 5 October 2001, see United Arab Emirates v Abdelghafar [1995] ICR 65,71D per Mummery P. Nor do I derive any assistance from the provisions of the Police and Criminal Evidence Act 1984, to which Mr Brown has referred me.
12. In these circumstances I uphold the Registrar's decision to strike out the Notice of Appeal.
13. I should add this: although the merits of a proposed appeal are normally of little weight in deciding the question of whether time should be extended, I respectfully adopt the observation of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111 at paragraph 23, that where it is plain that the appeal has no prospect of success, that is a matter which should be taken into account. There can be no point in giving an extension of time for an appeal which is bound to fail.
14. I have considered the further and better particulars lodged on 20 October last. In my view they disclose no point of law which effectively challenges the Tribunal's clearly explained exercise of discretion in making the costs order. Indeed, Mr Brown appears to accept, in his letter dated 4 June, that he may wish to amend those further and better particulars in some, as yet unspecified way.
15. For this additional reason also I shall dismiss this appeal.