United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr E McFARLANE (Representative) Natwest Mentor Services Litigation Dept 2nd Floor Sapphire West 550 Streetbrook Road West Midlands B91 1QY
For the Respondent	MR S KEEN (of Counsel) Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ


 


SUMMARY

Practice and Procedure – Review

A request for a review was made out of time following a default judgment. The Chairman rejected it on time grounds alone without appearing to take into account the reasons put forward for delay, or the merits of the case, both of which should be considered when deciding if time should be extended for such an application. Further, the Chair expressly took into account a consideration which appeared irrelevant. Thus the matter remitted for a fresh decision to be taken.

THE HONOURABLE MR JUSTICE LANGSTAFF

1. This appeal from a short decision on an interlocutory step by a Chairman sitting alone at Bury St Edmunds Tribunal, sent to the parties on 3 February 2006, raises issues as to the scope and approach to be taken in respect of Rule 33 of the Employment Tribunal Rules, scheduled to the Regulations of 2004. Rule 33 is headed "Review of Default Judgments". It reads as follows:

"1. A party may apply to have a default judgment against or in favour of him reviewed. An application must be made in writing and presented to the Employment Tribunal office within 14 days of the date on which the default judgment was sent to the parties. The 14 day time limit may be extended by a Chairman if he considers that it is just and equitable to do so.

2. The application must state the reasons why the default judgment should be varied or revoked. When it is the Respondent applying to have the default judgment reviewed the application must include with it the Respondent's proposed response to the claim, an application for an extension of the time limit for presenting the response, and an explanation of why Rules 4(1) and (4) were not complied with."

Rule 33(4) provides that the Chairman may:

"(a) refuse the application for a review;

(b) vary the default judgment;

(c) revoke all or part of the default judgment; or

(d) confirm the default judgment".

Rule 33(6) provides:

"In considering the application for a review of a default judgment, the Chairman must have regard to whether there was good reason for the response not having been presented within the applicable time limit."

2. The reference to Rule 4, made within the text of Rule 33, is a reference to the Rule relating to making a response. Rule 4(1) provides:

"If the Respondent wishes to respond to the claim made against him he must present his response to the Employment Tribunal office within 28 days of the date on which he was sent a copy of the claim. The response must include all the relevant required information. The time limit for the Respondent to present his response may be extended in accordance with paragraph 4."

Paragraph 4 reads:

"The Respondent may apply under Rule 11 for an extension of the time limit within which he is to present his response. The application must be presented to the Employment Tribunal office within 28 days of the date on which the Respondent was sent a copy of the claim, unless the application is made under Rule 33(1), and must explain why the Respondent cannot comply with the time limit. Subject to Rule 33 the Chairman should only extend the time within which a response may be presented if he is satisfied that it is just and equitable to do so."

The facts

3. In his decision of 3 February 2006, Mr Mitchell, Chairman, issued a Default Judgment on the Claimant's claim that he had been unfairly dismissed by the Respondent, that he had unpaid holiday pay due to him and that there had been a breach of contract toward him. By a decision on 27 March 2006 the Respondent employer was ordered to pay sums, totalling £9,530 on my addition, in respect of those three heads of claim.
4. On 11 April 2006 the decision was made in respect of which this appeal is brought. The Chairman, Mr Mitchell, had received what he took to be an application to review the Default Judgment of 3 February. It was received only two days earlier on 9 April 2006. What Mr Mitchell said, in the brief reasons which are under attack before me, is:

"The application to review the Default Judgment of 3 February 2006, received on 9 April 2006, is well outside the time limit. It is not appropriate to extend that time because (a) the Respondent was advised by letter of 21 February 2006 of the possibility of a review and invited to seek advice about this, and (b) did not attend the remedy hearing, of which the Respondent was aware."

5. There were thus two express grounds for the decision which the Chairman reached. The decision was in respect of extension of time. Unless he extended time the application was bound to fail. He refused to extend time under his just and equitable power to do so because of the two matters headed (a) and (b).
6. Before me it is said that Chairman was in error in two respects. First it is said that he took into account a consideration which he should not have done; that is he expressly took into account the failure of the Respondent to attend the remedy hearing. This, says the Appellant, was irrelevant to whether or not the application to review the Default Judgment of 3 February 2006 should or should not be permitted under the just and equitable extension of time principle.
7. Secondly he says that the Chairman should have had regard to the reasons for the failure of the Respondent to submit an earlier response to the claim, thereby permitting the case to go by default, and should have had regard to the prospects of success on the merits of the claim. If the Respondent had a meritorious defence then the effect of the default procedure would be to deprive him of a hearing to which he would otherwise be entitled. The balance of prejudice would thus necessarily fall to be considered to see whether shutting the Respondent out from a good defence, or one which might be a good defence, outweighed the Claimant's interests in holding on to a Judgment he had secured by default and, in the circumstances of this case, one in which he had been put to the additional time, trouble and expense of attending a hearing in respect of remedies.
8. The short note of the reasons of the Chairman does not expressly show that he considered either matter.
9. I have to approach the case with some caution. A decision such as this is often condensed in form. Chairmen cannot be expected to set out in full detail each and every consideration that they may have had in mind. It would be unrealistic to expect them to do so and would impose too great a burden upon the administration of Employment Tribunals. Accordingly I should not easily accept a submission that the Chairman missed this or that factor if, in truth, they are no more than peripheral concerns. However, I have no material to go on, save the wording of the decision in the letter of 11 April 2006, which I recognise I must approach at face value.
10. At face value it would appear that the Chairman had in mind that the failure of the Respondent to attend the remedy hearing was to be held against it in determining whether time should be extended for reviewing the Default Judgment of 3 February 2006. Mr McFarlane, who represents the company before me, argues that this is an irrelevant consideration. The Respondent, in a response which is both frank and fair, said, in the second page of his own Skeleton Argument, that it did seem wrong of the Chairman to have considered the Respondent's non-attendance at the remedies hearing as a relevant factor. However, despite what his client had responded, Mr Keen has sought to persuade me on his behalf that it is a relevant factor. He argues that the failure of the Respondent to turn up to the remedies hearing and the fact that the Appellant did turn up means that the prejudice to the Appellant would be all the greater if this appeal were to be allowed and if, ultimately, the decision of the Chairman were to be that there should be a review. It might turn out that the Respondent had wasted his time for no better reason than that the Appellant had been slow in seeking permission to put in a response and in seeking a review.
11. It is possible that such a view might have been in the mind of the Chairman. However, I think that the natural reading of what the Chairman had in mind, since it was not further explained along the lines that Mr Keen has urged on me, is as both Mr McFarlane and Mr Lucek himself read it. So read, the failure to attend a hearing after the Default Judgment had been entered seems to have no obvious and immediate relevance to the question of extending time for applying to review the Judgment of 3 February. It looks very much upon the face of it as if, therefore, an irrelevant consideration has been taken into account by the Chairman.
12. In his Skeleton Argument, although he did not develop it further in oral submissions, Mr McFarlane argued that the law has become clear as to how, under the new rules, applications for a review should be considered.
13. In the case of Pendragon Plc v Copus UKEAT/0317/05, subsequently reported in the Industrial Cases Reports, a former President of this Tribunal considered whether or not a consideration of time was the only consideration which should inform a Tribunal in determining whether to grant a review or not under Rule 33. The Tribunal, whose decision he was then considering, had taken the view on a construction of Rule 33 that, unless the Tribunal were satisfied that there was a good explanation for the delay, it had no discretion to grant an extension of time. Having considered those submissions, in particular in the light of a case which dealt with time limits but in a slightly different context, that of the case of Moroak v Crombie [2005] IRLR 535, the President concluded that Rule 33 should be approached in the same way as this and Employment Tribunals had approached the former rules; that is applying the principles definitively set out by then President Mummery J in the case of Kwik Save v Swain [1997] ICR 49.
14. Having observed at paragraph 12 of Pendragon that there was a power to review a decision to debar for a failure to put in a response in time without there having been an application to extend the time for a response prior to the expiry of the period, and that it should be exercised on the same principles as governed the undoubted power to decide whether to review a Default Judgment, Burton J said in paragraph 12 that the well-established principles of Kwik Save should apply. He went on to consider whether there was any good reason why this should not be the case under the new rules and rejected that conclusion.
15. Accordingly it is established by a decision of this Tribunal that the approach to be taken under Rule 33 is not simply one of time limits and their applicability. It includes the discretionary factors to which specific reference is made in Kwik Save v Swain: see page 54h to 55e. There Mummery J said:

"The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The Tribunal is entitled to take into account the nature of the explanation and to form a view about it. The Tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the Tribunal to decide what weight to give to this factor in the exercise of the discretion. In general ,the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full as well as honest.

In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other, and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising a discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer if the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party then that is a factor in favour of granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying to them a rule of law not tempered by discretion.

It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham M.R. in Costellow v Somerset County Council [1993] 1 W.L.R. 256, 263:

"a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate."

Thus if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. If no extension of time is granted for entering a notice of appearance, the industrial tribunal will only hear one side of the case. It will decide it without hearing the other side. The result may be that an applicant wins a case and obtains remedies to which he would not be entitled if the other side had been heard. The respondent may be held liable for a wrong which he has not committed. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case."

16. It is complained that here the two principal matters to which Mummery J drew attention in Kwik Save, that is the reason for the delay and secondly the prejudice to the Appellant from not granting the review, were not taken into account. I would prefer to say that, if they were taken into account, it was not expressly so indicated in the decision of 11 April.
17. In argument Mr Keen, for Mr Lucek, accepted that a Tribunal Chairman should have regard to the merits of the case, in respect of which Default Judgment had been given. He did not in terms submit that it was relevant to consider the reasons for delay, his submission there being rather different. He claimed that upon any fair view of the delay here there was no full explanation and certainly no satisfactory one, even for the part in respect of which there was an explanation. That is, in part, to approach the issue as one in which I should exercise the powers of this Court on appeal to reject the appeal by recognising that, even though the chairman may not have expressed all the considerations upon which he decided the application and cannot be assumed to have had them in mind, the same result would have been achieved had the Chairman considered the matters which he does not expressly refer to. In other words he was plainly and unarguably right.
18. That submission is worthy of respect, but it is a matter of fact that there is no express reference to either of the two matters referred to particularly in Kwik Save. As to the merits, this is perhaps surprising. That is because, in the response which so belatedly accompanied the application for a review, the would-be Respondent raised the question whether the Claimant should have been permitted to run his claim at all before the Employment Tribunal. The dates here are clear. The Claimant said that he had been employed for a matter of a short while from 3 May 2005 until 30 June 2005; that is less than the qualifying period unless the dismissal is one to which the automatically unfair provisions apply.
19. Though dismissed on 30 June 2005, his originating application was not presented until 30 December 2005, exactly six months afterwards. The usual time limit, unless extended by exercise of the reasonably practicable extension, is three months, except where the provisions of the Employment Act 2002 apply to extend the period.
20. The complaint in respect of unfair dismissal, made by the complainant in his ET1 began at paragraph 5.1 by saying:

"Mr Colin Jackson, Director of Impactdisk Ltd, dismissed me on the spot without notice and without following any form of disciplinary procedure."

21. The Employment Act 2002 Dispute Resolution Regulations 2004 provide by regulation 15 for an extension of the usual three month time limit. The extension provision is in these terms:

"1. Where a complaint is presented to an Employment Tribunal under a jurisdiction listed in schedule 3 or 4 [I interpose to say there is no point of relevance which emerges here in respect of those schedules] and (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified at paragraph (2) apply, or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified at paragraph 3 apply, the normal time limit for presenting the complaint is extended for a period of three months, beginning with the day after the day on which it would otherwise have expired."

22. The reference to "either of the dismissal and disciplinary procedures" and to "either of the grievance procedures" is a reference to the terms of schedule 2 to the Employment Act 2002 itself. Part 1 of schedule 2 is headed "dismissal and disciplinary procedures". There is a standard procedure and a modified procedure. The pattern of two procedures, standard and modified, is repeated in respect of grievances under part 2 headed "grievance procedures".
23. A clear statutory distinction is thus drawn between the two forms of procedure. That is obvious when one considers the steps to which the procedures refer. Where there is dismissal or discipline the first step is to be taken by the employer, who is to set out in writing the conduct or characteristics, or in the modified procedure the alleged misconduct, to which the contemplation of dismissal or disciplinary action relates. It is initiated by the employer.
24. By contrast the grievance procedures provide for the employee to initiate the grievance. This difference is reflected when one returns to the 2004 Regulations and considers the provisions at paragraphs 2 and 3. Since the Claimant averred here that he was unfairly and unnecessarily sacked it is the dismissal procedures which are applicable. Paragraph 2 of his application reads:

"The circumstances referred to in paragraph 1(a) are that the employee presents a complaint to the Tribunal after the expiry of the normal time limit for presenting the complaint. But I have reasonable grounds for believing when that time limit expired that a dismissal or disciplinary procedure, whether statutory or otherwise, including an appropriate procedure for the purposes of regulation 5(2), was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint."

25. On the face of the originating application it is difficult to see how the Claimant might comply with the provisions of 15(2). He was expressly complaining about there being no form of disciplinary procedure. The very words appear to deny him the advantage of the extension of time limits which depends upon his having reasonable grounds for believing at the end of the three month period, that is on 29 September 2005, that a dismissal or disciplinary procedure was being followed. As it happens none was.
26. In respect of this, therefore, one might have thought that a Tribunal would of its own motion, as many Tribunals do, have invited the parties for a preliminary hearing as to jurisdiction. Without it there would be no jurisdiction to consider the unfair dismissal claim by virtue of the provisions of section 111 of the Employment Rights Act 1996.
27. However, Mr Keen has shown me that in the bundle of documents before the Chairman on 11 April 2006 was a letter which the Claimant had written on 12 September to a Mr Colin Jackson. This was a letter which began by saying he wished to raise a grievance and which ended by making a reference to using the modified two-step grievance procedure. On the second page of what is a three page letter are the words:

"Had you fulfilled your legal obligations and responsibilities as an employer it seems unlikely that a simple discussion about when pay was due would have resulted in my unfair dismissal."

And at the bottom of that paragraph:

"Finally a disciplinary procedure would have allowed you a chance to come to a rational decision rather than acting impulsively in the heat of the moment."

28. Mr Keen argues correctly that an over-technical approach must not be taken to letters of complaint. He extends that principle, however, to argue that here, although the letter begins and ends with reference to the grievance procedure, and in content in my view is fairly read as relating to a number of grievances arising out of employment, it raises issues which would be relevant to a disciplinary hearing. Although it could not come within the standard procedure, it could, submitted Mr Keen, come within the modified procedure in respect of dismissal and disciplinary procedures in schedule 2. Notwithstanding that there appeared to be two steps, the first of which is to be taken by the employer and which, it is part of Mr Lucek's complaints, the employer did not take, nonetheless Mr Keen submits paragraph 5 of schedule 2 refers to the possibility that if an employer wishes to appeal he must inform the employer, and if the employee informs the employer of his wish to appeal the employer must invite him to attend a meeting. Mr Keen invites me to construe the letter as being an invitation to an employer, in compliance with paragraph 5 of schedule 2, therefore within the disciplinary and dismissal proceedings.
29. I have, I confess, considerable difficulties in so reading it but I would not wish to reach any final conclusion upon it at this stage. My difficulty arises because, it seems to me, as I have indicated, dismissal and disciplinary procedures on the one hand and grievance procedures on the other are distinct. Very much the same was observed by this Tribunal in Galaxy Showers v Wilson: see paragraph 28. Secondly the letter does appear to be a grievance and does not in terms ask that the employer meets Mr Lucek in order to discuss the possibility that the discipline may be waived and the dismissal reversed. It does not appear to be an expression of a desire to have his job back. And thirdly the last sentence to which Mr Keen drew attention, which I have cited above, suggests that there was no disciplinary procedure, rather than that Mr Lucek had a reasonable belief that, following this letter, one would actually be followed, even if in accordance with statute rather than in accordance with the employer's proper responsibilities.
30. However, I do not purport to determine those matters finally, merely to observe that there are, it seems to me, some potential difficulties in their way. It may be, having listened to Mr Lucek, a Tribunal or Judge might form a different view of what the intention was and might form a view as to whether he did or did not reasonably believe that a disciplinary process was actually being followed, and if so what the grounds for that were. Its present relevance is whether the Chairman, in coming to the conclusion expressed on 11 April 2006, can be understood as having turned his mind to the merits of the claim and having dismissed the jurisdiction point as being of little weight because of this letter, taken with the ET1 and the proposed response.
31. This, in my mind, is to take far too convoluted and complex an approach to what, if it had been considered, the Chairman would necessarily have had to say at least something about, and did not. Although it may very well be that he had such matters in mind, I cannot be certain that that was the case. On the face of it, it appears that he exercised the decision to reject a request for a review upon the basis of time only, without turning his mind to this issue which, as I have indicated, is one of the issues which Kwik Save suggests he should have had in mind.
32. The next question is whether he had in mind the reason for the delay. Here he was fully entitled, in my view, to regard the delay as extensive. A response should be submitted within 28 days. This response was submitted after very nearly three months. It was late in submission because it was said that Mr Jackson had been ill and, as a result of his ulcerative colitis, had not been fit enough and therefore had not regularly attended his place of work in order to pick up post. It appears the company had ceased trading. There was no arrangement, it seems, made by Mr Jackson to forward post to him. There seems to be no reason why that should not have been put in place, but it was not. He did not, he says, see the claim form until 17 February, but the Employment Tribunal has a hand-written attendance note of a conversation with Mr Jackson on 16 February which relates to it. There may be an error of dates, but again the exact sequence of events is opaque.
33. Next the explanation for the delay in submitting a response should be one which covers the entire period of time if it is to be the full response to which Mummery LJ referred. The response that Mr Jackson was ill and had been unwell does not, it appears, satisfactorily explain what he was doing between 17 February, when he wrote a fairly lengthy letter, almost filling one side of A4, to explain his illness to the Tribunal, and 9 April when finally the response was completed.
34. The reasons for the delay are said to involve advice which Mr Jackson was given when he phoned the Tribunal, presumably on 16 February. He says in his application that he understood from those telephone discussions that he should await the Judgment on remedy. It is suggested before me that he had advice that he could take no part in the proceedings and it is suggested before me that a letter which was written to him by the Tribunal on 21 February 2006 had the effect of discouraging him from taking any further steps. That letter of 21 February says that the Employment Tribunal cannot receive private correspondence. It noted that because Mr Jackson had not filed a response to the Claimant's claim the rules did not permit him to take any part. It then adds this:

"However, if for some reason as alleged you did not receive the claim you may wish to seek advice. In certain circumstances a review of the Default Judgment may be possible but this is a matter for you to decide; the Employment Tribunal cannot offer advice."

Mr Keen draws attention to the fact that the Appellant says in part that he was advised in certain respects.

35. More fundamentally the material put forward by the Appellant does not deal at all with his response to a letter written to him on 3 February 2006, which it appears he saw because he saw the claim form. That letter came to him with the Default Judgment. It read, in the largest and material paragraph:

"You have the right to apply for a review of the Default Judgment. If you wish to do so you must apply within 14 days of the date of this letter. Your review application must include a statement of the reasons why the Default Judgment should be varied or revoked, an application for an extension of the time limit for presenting a response, and explanation of why the response was not presented within the original time limit, and why no application for an extension of that time limit was made. The response which you now wish to present must be attached to the letter."

36. Mr Keen says with considerable force that on 17 February, which is 14 days after that letter and of course the day after he appeared to have been in telephone contact with the Tribunal, Mr Jackson, whatever his medical problems, was able to send quite a detailed letter, coherent and cogent, about his medical position. If he could do that he could, it is suggested, have done exactly that which he had been advised in terms to do in the letter of 3 February, which is exercise his right to apply for a review of the Default Judgment If he had done so, he would have done so in time.
37. All these matters seem to me to be powerful matters. What is, however, plain, again perhaps because of the terseness with which the conclusion was expressed by the Chairman, is that there seems, on the face of it, to have been no consideration by him of the reasons for the delay. It may have been within the mind of the Chairman to reject them as specious. If so one might have expected at least some hint that that was the case. There is none which is obvious.
38. Thus my conclusion is that, accepting the test as being that although the exercise of a discretion are not lightly to be set aside, if it can be shown that a discretion appears to have been exercised on some wrong basis, by taking into account something which should not have been taken into account and by leaving out of account that which should have been, it cannot stand. It seems to me that the letter of 11 April is one which cannot stand as a decision without further consideration or explanation by the Chair since it takes account of an irrelevant matter, and does not appear to had in mind relevant ones. It must fall unless the decision was, in any event, plainly and unarguably right, a matter to which I now turn.
39. Much of the submissions of Mr Keen on behalf of the Respondent have been to persuade me that this Tribunal should conclude that the Chairman was right. Mr Keen emphasises that there was no application as such for an extension of the time limits for review; a surprising matter given the lateness of the application for a review. Secondly he says that the length of time here was excessive. Thirdly he notes the adverse effects on Mr Lucek, who has had to attend a hearing on quantum which might prove to be totally nugatory. Fourthly he contends that the reasons for delay are shady. Fifthly I notice, though he does not specifically contend, that the complaints which Mr Lucek made were about the behaviour of the Respondent Company and its failure to adhere to what might seem to be the most basic of employment practices. This gives no confidence that they have any respectable defence to his complaints. Be that as it may, this is not a matter, it seems to me, that I can determine here without hearing the parties. Sixthly he maintains that those matters which might tell in favour of the Respondent do not, on analysis, do so. He seeks to persuade me, for instance, that there is a proper answer to the jurisdictional point and therefore, in conclusion, I should not remit this case as otherwise I would have to do.
40. The submission which has given me most concern is that of prejudice which might be caused to Mr Lucek. The effect of delay beyond that which is provided for by the rules by some way, as the Chairman noted, was that he went to a quantum hearing, incurred expense and time and, no doubt, has expectations of the fruits of that labour. It seems to me that if the matter is remitted to the Chairman and if the Chairman, having considered the matter afresh, comes to the conclusion that it would be just and equitable to permit a review, and if, as a consequence of that review, a decision is made by a Tribunal, whether in favour of the Claimant or the Respondent, then the prejudice which has undoubtedly been caused in part to Mr Lucek may be remedied if an application for costs is made and is successful.
41. I do not wish to determine in advance any such application; I have no right to do so. But I record the possibility that this might afford some means for remedying such disadvantage as there has been, and record that both advocates before me have accepted that it is at least a possibility. I say no more about it since, once again, I am not determining that issue.
42. Not without some regrets, I have come to the conclusion that the decision, conveyed by the tersely expressed letter of 11 April 2006 is not plainly and obviously right. It has to be reconsidered by a Chairman at the Bury St Edmunds Tribunal. The matter will therefore be remitted there for further consideration whether to entertain the application for a review, and whether it is just and equitable to extend the time limits to permit that application to be made. Accordingly and on that basis this appeal is allowed.