United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr J Livesey (of Counsel) Instructed by: Over Taylor Biggs Solicitors 4 Cranmere Court Lustleigh Close Matford Business Park Exeter EX2 8PW
For the Respondent	Mr D Maxwell (of Counsel) Instructed by: Wragge & Co LLP Solicitors 55 Colmore Row Birmingham B3 2AS


 


SUMMARY

Practice and Procedure – Time for appealing

Appeal against Registrar's refusal to extend time – Appellant submits that "Abdelghafar approach" requires modification in the light of the introduction of rule 2A (over-riding objective) – Submission rejected.


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. This is an appeal against a decision of the Registrar refusing an extension of time for appealing. The Appellant has been represented before me by Mr John Livesey of Counsel and the Respondent by Mr David Maxwell of Counsel.
2. The underlying proceedings were brought by the Appellant against the Respondents for unfair dismissal, alleging dismissal for an inadmissible reason pursuant to section 103A of the Employment Rights Act 1996 (the so-called "whistleblower" ground). The Tribunal found in her favour on liability in March 2006. A remedies hearing took place between 23 and 25 October 2006. It was agreed by the parties and the Tribunal that the Tribunal would decide the issues of principle relevant to the calculation of compensation and leave it to the parties to try to calculate detailed compensation on the basis of that decision, with a back-stop hearing being fixed in the event that agreement was not possible. In accordance with that agreement the Tribunal announced a decision orally in summary form on 25 October 2006, making findings on a number of factors which would determine the assessment of compensation. A judgment with reasons was subsequently sent to the parties on 15 November 2006. Although in the text of the judgment as sent it is referred to as a "preliminary" judgment, Mr Livesey disavows any submission that it was other than an effective judgment such that time for appeal started to run when it was promulgated.
3. The rulings made by the Tribunal in the remedies judgment were not as favourable to the Appellant as she believed that they should have been. In particular, the Tribunal ruled that there should be a very substantial discount on the compensation reflecting her loss of future earnings to reflect the likelihood that at some time in the future she would have been fairly dismissed by the Respondents, applying the well-known principles in Polkey v A E Dayton Services Ltd [1988] AC 344. Her solicitor, Mr Over of Over Taylor Biggs, indicated in correspondence with the Respondent's solicitors that the Appellant intended to appeal, but the two firms nevertheless (and entirely correctly) attempted to agree the figures consequent on the Tribunal's judgment. On 15 December 2006 it was finally agreed that the correct figure (on that basis) was some £109,776. There was a subsequent hiccup when this figure was notified to the Chairman because he suggested that it should be embodied in a compromise agreement, which would not have been appropriate in view of the Appellant's intention to appeal. However he was put right on that. The hearing which had been provisionally fixed to determine the figures did not proceed, and on 18 January 2007 a final judgment was pronounced in the agreed sum.
4. As I have said, time for appealing against the Tribunal's judgment ran from 15 November 2006 and accordingly expired on 27 December 2006. The appeal was not however lodged until 5 January 2007 - that is nine days late. Further, the appeal as initially lodged was in fact defective because the ET1 and ET3 were not supplied with the Notice of Appeal; they were supplied by fax two days later as soon as the omission was pointed out. The formal result of that is that the appeal was not instituted until 7 January 2007. That further error was no doubt trivial, and probably also venial, but the case-law shows that it might nevertheless be decisive (see Kanapathiar v London Borough of Harrow [2003] IRLR 571). I need not however reach any view on this aspect, since there can be no material difference between the time limit being missed by nine days or eleven.
5. On 29 January 2007 the Appellant applied for a retrospective extension of time for lodging her appeal. She made various points in support of the application, with which I will deal below, but I should record the factual explanation given by Mr Over which was as follows:

"The Grounds of Appeal were drafted and had been agreed with our client in early December. The Grounds of Appeal would have been lodged with the EAT then but for two reasons:-

(1) the Claimant wished to reach agreement on the interpretation of the preliminary judgment if possible without lodging the Notice of Appeal which would have made the negotiations even more difficult than they were.

(2) the Claimant was in a poor financial position having been out of work for a considerable number of months. There was therefore a real desire to agree the remedy issue with the Respondents so that at least she would be in receipt of those funds.

In the circumstances the focus was on the hearing of 3 January and the reaching of agreement with the Respondents. As soon as this was achieved the Notice of Appeal was lodged. We sincerely apologise for missing the fact that the 42 day deadline in relation to the preliminary judgment in fact expired between the Christmas and New Year holidays. However, as we have explained, the circumstances under which this occurred were in our submission extraordinary arising from the manner in which the Tribunal was dealing with this matter on a piecemeal basis."

Mr Maxwell submits that this explanation was essentially a confession of tactical trickery. I do not agree. Although Mr Over's concerns about upsetting the Respondents may have been rather unrealistic, particularly in circumstances where he had clearly indicated the Appellant's intention to appeal, I would not criticise a decision not to lodge the appeal while negotiations were proceeding, subject of course to not letting the time limit expire. However that element does not explain the delay after 15 December 2006. Although Mr Over does not quite explicitly say, so it is in my opinion adequately clear from his letter that this was simply an oversight, and I would not accept Mr Maxwell's criticism that the Appellant or her solicitor on her behalf has been less then frank in explaining the delay. The fact however remains that the explanation is not one which offers any real excuse for the failure to lodge the appeal in time.

6. I need not rehearse here at length the principles applying to applications to extend the time for appealing in this Tribunal. The decision of Mummery LJ in the case of United Arab Emirates v Abdelghafar [1995] ICR 65 is well-known, and the guidance there given was approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. The time limits in this Tribunal are applied strictly, and extensions will only be granted exceptionally where the Appellant has given a full and frank explanation showing compelling reasons why an extension in necessary in the interest of justice.
7. Mr Livesey, in excellent submissions which made all the points that could be made on the Appellant's behalf succinctly and well, relied on several features of the present case which he said took it out of the ordinary run of such applications and compelled the conclusion that an extension should be granted. I will review those factors as follows.
8. First, he relied on the fact that the Tribunal was following a somewhat unusual procedure in giving a "preliminary" judgment on the issues of principle and leaving the consequences of that decision to be agreed between the parties so far as possible. I do not in fact accept that that procedure is particularly unusual, but even if it was I cannot see how it weighs in favour of an extension. There was a perfectly clear judgment of the Tribunal which was capable of being appealed, and I do not see that the fact that further proceedings might have been necessary made any difference.
9. Secondly, he relied on the fact that the amount at stake in the intended appeal is particularly large. As I have said the amount of the judgment consequent on the Tribunal's rulings has been agreed at some £109,000. If the Tribunal had not made the discounts to which the Appellant objects I am told that the amount of compensation would have exceeded £400,000. I am not convinced that the size of the amount at stake should make any real difference in the application of the relevant principles: the rules are the same for large claims and for small. Nevertheless, perhaps in highly exceptional cases this might be a relevant factor; but I cannot say that the amount ostensibly at stake here is sufficiently great to require any special treatment.
10. Thirdly, Mr Livesey submitted that this was a case where the appeal stood a particularly strong chance of success if it were allowed to proceed. Mummery LJ in Abdelghafar acknowledged that that was capable of being a relevant factor, though he deprecated any attempt to turn the hearing of the application for an extension into a mini trial of the merits. I do not wish to say more than I need about this factor, and I would certainly not want what I do say to be treated as an authoritative decision on the prospects of the appeal if that issue has to be considered in other proceedings. However, in order to deal with Mr Livesey's submission I must say something. The heart of the appeal, as I have said, is a challenge to the discounts applied by the Tribunal as part of a Polkey exercise. On the face of the reasons I can see nothing surprising or wrong in principle either about the application of such a discount or about the way in which the Tribunal assessed it. Mr Livesey's main point however was that the Tribunal embarked on that exercise without hearing any evidence directed to it and without the Appellant or her solicitor (who I should say was the advocate in the proceedings before the Tribunal) having any real notice of it. As to that, it has not been possible on the material before me to get to the bottom of exactly how the Polkey point came up. It is clear that no Polkey point was explicitly taken by Mr Maxwell in his skeleton argument; but it also appears to be accepted, from what Mr Maxwell and Mr Livesey tell me, that the point was raised in the course of the hearing - a three-day hearing, as I have said - and submissions were invited on it by the Chairman. Whether the point was first raised by the Chairman or by Mr Maxwell is perhaps not of great significance. That being so, this is not a case where the point was dealt with for the first time by the Tribunal in its Reasons without any notice whatever to the advocates. There may nevertheless be an arguable point that the notice given was inadequate. As I say, I am not in a position to, and do not wish to, express any definitive view on the prospects of success of such an argument; but I can certainly at least say that it does not seem to me overwhelmingly strong. The question of a Polkey discount was, in truth, central to the assessment exercise that the Tribunal was going to have to be asked to carry out and was a point which might reasonably have been anticipated even if it did not feature in the Respondents' written submissions. The upshot of that review is that, while I do not say that there was no arguable point here, I cannot regard this as a case where there was some point of exceptional strength such that there would be a particular injustice in the appeal not being allowed to proceed.
11. The last two points made by Mr Livesey can perhaps be taken together. They were, shortly, that there was no prejudice to the Respondents from the delay and that the delay was very short. Both points are good as far as they go, but as is made clear in Abdelghafar, they are points of very little weight in this particular context.
12. The result of that review is that if I were simply to apply the well-known approach set out in Abdelghafar there would be no basis for extending time in this case. Mr Livesey however has a final and well-deployed argument in his armoury. He submits that the principles in Abdelghafar are now obsolete following the introduction, with effect from 1 October 2004, of rule 2A into the Employment Appeal Tribunal Rules 2003, that of course being the rule introducing the now familiar "overriding objective" provisions. He submits that it cannot be consonant with the overriding objective of dealing with cases "justly", or with the requirement of proportionality, for the rules about time limits to be applied with what he colourfully described as the "mechanistic venom" with which they were applied in this case.
13. Neither Mr Livesey nor Mr Maxwell was able to refer me to any decision in the past 2 ½ years in which the effect of the introduction of rule 2A on the principles governing the extension of time for appealing has been considered, although there must have been very many cases in which Abdelghafar has been applied over that period. In at least one reported case, Woodward v Abbey National Plc [2005] IRLR 782, if it had been the position that the overriding objective justified a more relaxed approach to the extension of time limits than had previously been the case one might have expected that the President would have adverted to it. Mr Maxwell also points out that the 2004 Practice Direction, which was reissued shortly after the changes to the Rules introduced in 2004, continues to treat Abdelghafar as authoritative. Neither of those points is in any way decisive, but they do suggest that Mr Livesey's submission has to be approached with some caution.
14. In my view Mr Livesey's submission on this point is not well-founded. As he was constrained to admit, the requirements of justice and proportionality cannot be taken to preclude the application of reasonable time limits, even where the margin by which the limit may have been missed in any particular case is short. Procedural rules are essential to any fair procedural system. There will always be what appear to be hard cases where the limits fall to be applied after what appears only to be a minor breach or where the prejudice to the other party is small, but that does not render their application unjust. Once that is recognised, it seems to me frankly meaningless to say that justice now requires that such rules be applied "less strictly" then they once were or would otherwise be. The distinctions involved have no measurable content. If the approach adopted in Abdelghafar was consonant with justice in 2000 when the Court of Appeal in Aziz approved it, I cannot see that it has ceased to be so now simply because of the explicit recognition of the overriding objective introduced in 2004.
15. For all those reasons I dismiss this appeal.