United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAGET (of Counsel) Instructed by: Messrs Lynch Hall & Hornby Solicitors Hornby House 23 Peterborough Road Harrow Middx HA1 2BD
For the Respondent	MISS J SHEPHERD (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Kett House Station Road Cambridge CB1 2JY

SUMMARY

Practice and Procedure

There is no reasonable prospect of success in an appeal against refusal to exercise discretion to extend time for an appeal under Rule 21 (1) and 37 (1) when it is common ground that UAE and Aziz principles apply and no explanation was given for solicitors' failure, a fortiori in an appeal on a limitation point. Cooke v SoS would inform the CA's approach to the judgment of this specialist tribunal.


 


HIS HONOUR JUDGE McMULLEN QC

1. I am due today to hear an appeal against an Order of the Registrar dated 23 August 2004. In that Order she considered whether or not a Notice of Appeal should be admitted out of time. It has been received 310 days out of time and the time limit is 42 days. The Registrar directed an order on that date giving her reasons why she refused to accept the lodgement of the Notice of Appeal. Those reasons contain her reflection on the authorities which are Sian v Abbey National plc [2004] IRLR approved by the Court of Appeal in Chelminski v Gdynia America Shipping Lines (London) Ltd [2004] EWCA Civ 871 and Mock v Commissioners of Inland Revenue [1999] IRLR 785. Those authorities continue a line of authorities most notably Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111 and United Arab Emirates v Abdelghafar [1995] ICR 65.
2. In short, those authorities support the proposition that there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits and that the merits of an appeal may be relevant but are usually of little weight. Those authorities also make clear that the time limits in the EAT, which are 42 days for the lodging of a Notice of Appeal, are not targets but are to be complied with since that time limit for an appeal is generous within the context of civil appeals.
3. The Registrar, having considered the reasons for the delay, decided to make the order which she did. The order was directed to solicitors on the record who represent the Applicant throughout, Messrs Lynch Hall & Hornby.
4. An appeal against a Registrar's Order such as this must be lodged within 5 days. The Applicant herself, as I will call her, lodged these proceedings on 9 September and she is thus 9 days out of time. There is no reflection in her home-made Notice of Appeal about the reason why there was a delay.
5. The first issue for me to decide therefore is whether I should hear this appeal, it being out of time, and whether I should exercise my discretion.
6. Mr Paget, the latest in a long line of distinguished Counsel, both junior and leading, to represent Ms Khan, has placed before me two arguments in support of his application that I should exercise my discretion. I have to say that he has recovered from what appeared to be a new point put to him by me that this appeal was out of time and I am satisfied that he has made all the arguments which could possibly be made by Ms Khan.
7. The first relates to her medical condition. I have read most carefully a medical report of Dr Theodore Soutzos, Consultant Psychiatrist dated 21 June indicating the condition from which the Applicant suffers, which is of, broadly speaking, an Anxiety Spectrum Disorder and a variation of Post Traumatic Stress Disorder which includes incurrent and intrusive distressing recollections of the events of discrimination and mistreatment at work. There is no more recent medical material than that and I accept it at face value.
8. However, in my judgment it is not an important factor in my consideration today, for the second argument is that the Applicant learned of the Registrar's decision on 7 September when she attended a meeting at her solicitors. At that stage it was agreed, I am told, that she herself would put in a Notice of Appeal. I have not been told of any advice given by the solicitors about the merits, nor have I been told what advice the solicitors gave about overcoming the procedural defect relating to time.
9. What has been suggested by Mr Paget is that I should look at this error in the context of the protracted litigation over a considerable period of time involving the Applicant and the Respondent and take account of the fact that 9 days is a comparatively short extension and that there is no prejudice to the Respondent by this additional delay.
10. Mr Paget accepts the argument of Miss Shepherd who appears on behalf of the Respondent that the basic approach to my decision on this procedural aspect should be the same as was the Registrar in deciding whether or not I accept a Notice of Appeal basing myself on those authorities.
11. It is clear that from those authorities an Appellant must make a frank explanation known to the EAT of the reasons for the delay and they must be satisfactory. The merits of the underlying dispute will seldom be relevant unless in a plain case that the case is meritless.
12. On behalf of the Respondent Miss Shepherd contended that the correct context in which to place this hearing is that it is itself an appeal against a decision to refuse a Notice of Appeal as being out of time. The authorities to which I have referred apply with even greater force, she submits, in such circumstances. Here the time limit is shorter because of different considerations applying to an appeal from a Registrar. I am not aware of any criticism made by any court of the time limit for appealing against such an order. It is submitted that this is not a rare or exceptional case. The Applicant was represented at all times by solicitors and had been by Counsel and the delay is not minimal.
13. In my judgment Miss Shepherd's submissions are correct. I am fully aware of the Applicant's medical condition but that has played no part in the failure to lodge an appeal against the Registrar's Order until 9 days out of time. It is precisely because the Applicant has the condition that has been described to me that she has the advantage of specialist legal representation. There has been no explanation given to me as to why the solicitors failed to act promptly upon the receipt of the Order.
14. The time limit is short and we have to consider, both the Registrar and I, the large number of Appellants seeking to have their cases heard before the EAT. No exceptional circumstances, nor any clear explanation, has been given to me as to why the solicitors failed as they did. An oversight by solicitors is not a reason for extending the period in order to validate a Notice of Appeal or a Notice of Appeal from an Order of the Registrar.
15. I have not been addressed on the underlying merits of the case, but it seems to me that what I understand about the issues heightens the submission that is made that in a case which is about contentions that time limits were not met for lodging claims there is more focus on a need to comply with rules of the EAT.
16. I am also aware, of course, that I am hearing with members an appeal later this morning and that my judgment does not finally end the litigation between these parties. In those circumstances I will refuse to extend, in my discretion, the period of time by 9 days and this appeal, therefore, is dismissed.
17. I would like to thank very much Mr Paget for the measured way in which he has presented this appeal and Miss Shepherd too for her response.
18. Applying the principles in Cook v Secretary of State for Social Security [2002] 3 AER 279. I regard it as unlikely that the Court of Appeal will wish to intervene in the exercise of discretion by a specialist Appeal Tribunal.