ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
MRS J R DUNHAM
CLAIMANT/APPELLANT
- v -
HULL & EAST RIDING OVERSEAS PLASTIC SURGERY
DEFENDANT/RESPONDENT
(DAR Transcript of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
DR G M PURDY appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T
LORD JUSTICE PILL: This is an application for permission to appeal. It is made by Mrs Dunham and she seeks permission to appeal against an order of the Employment Appeal Tribunal, which on 6 January 2006 refused her an extension of time in which to appeal against a decision of an Employment Tribunal which had found against her. I do not propose to go into the nature of the employment, having regard to the narrow though important issue which is involved. Dr Gerard Purdy has been given permission by Keene LJ to present the application this morning. He has appeared for the applicant on previous occasions. I have drawn attention to the fact that he has told me that he is one of three trustees of the respondent organisation, Hull & East Riding Overseas Plastic Surgery and he believes himself to be the Chairman of the Trustees. I have not thought it right to enquire further or to rescind the order previously made, but Dr Purdy is aware of the implications of his position. I make no further comment about that.
It was on 13 June 2005 that an Employment Tribunal sitting at Hull dismissed Mrs Dunham’s claim for unfair dismissal. Reasons were sent on 25 July 2005. A Notice of Appeal was filed by the applicant on 6 September 2005 dated 4 September 2005. Dr Purdy accepts that the notice was filed one day out of time, and understandably makes the point that only one day’s extension is required.
The application was considered first by the Deputy Registrar of the Employment Appeal Tribunal. He refused the application for an extension. The matter then went before the tribunal in the person of HHJ Peter Clark sitting alone and he too refused it. The time limit is one of 42 days. It is well known that the Employment Appeal Tribunal do take a strict view of that timetable. They do so for the good reason that in these matters there is an interest in finality, an interest not only for the proposed respondent, but also a public interest and the time allowed for the filing of the notice, 42 days, compared with other periods for other purposes, is a generous one.
The application for an extension was made by letter of 29 September signed by Dr Purdy, who refers in the letter to two letters received from the EAT. Those are not in the bundle but I assume that they were an indication that the appeal was out of time. Dr Purdy wrote:
“I apologise for not responding to the letter of 7 September 2005, as I did not realise that a response was required. We acknowledged in the covering letter that our appeal was 24 hours late and pointed out that this was due to our understanding that we had six weeks from the date of receipt of the written reasons. Moreover, we had suggested faxing our appeal but had been advised by your office to send it by post with said covering letter.
These points notwithstanding, I formally request that you grant us the required 24-hour extension and consider our appeal as lodged”.
The proposed respondents wrote opposing the application. In a letter of 10 October Mr Hart, described as Founder Trustee and Chairman, stated on behalf of himself and Mrs R McGlone, who, I assume, is the third trustee, that:
“The application for an extension in respect of the above would be inappropriate. It is made very clear in the tribunal documentation that the period during which a claim can be made is within 42 [days] of the written receipt of the judgment. We fully expected any appeal made against this decision would have been lodged well before the 42 nd day. The grounds on which the appeal is potentially to be made, submitted by Dr Purdy, appear to be based on opinion rather than fact”.
Dr Purdy was given the opportunity to make further submissions which he did by letter of 24 October:
“I served Notice of Appeal one day following the closing date which was 42 days pursuant to the production of the written reasons by Ms Molyneux, the Tribunal Chairman. This was due to a misunderstanding on my part as I assumed the appeal had to be lodged within 42 days of receipt of this document. Mrs Dunham contacted your office and offered to send the appeal documentation by fax thus ensuring we met this deadline. The officer we spoke to recommended that we despatch our Notice of Appeal by registered post with a covering letter. We conformed to this advice”.
There is then reference to matters of substance, at some length, and there is no need to refer to those.
The Deputy Registrar in Chambers on paper refused an extension of time. The reasons were contained in a letter addressed to Dr Purdy dated 24 November 2005. Reference is made to authorities on this subject, including the case of Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111. That is cited for the proposition stated in the letter:
“It is the appellant’s duty to be aware of the importance of time limits and that these will be relaxed only in rare and exceptional cases where the EAT are satisfied that there is a full, honest and acceptable explanation of the reasons for the delay”.
Practice directions of the EAT have made it clear that it is only in exceptional circumstances that an extension will be granted. In this court it has been acknowledged that the principles for granting extensions of time for appealing to the EAT are stricter than those applicable on appeals to this court.
I refer to the practice direction of February 2005 [IRLR 189a paragraph 5], by the then president, Burton J:
“The reason for this Statement in open court is to re-emphasise these requirements and the consequence of failure to comply with them, namely that an appeal not lodged within the 42 days validly constituted, i.e. accompanied by the required documents, will be out of time, and extensions of time are only exceptionally granted”.
On behalf of Mrs Dunham, Dr Purdy took the opportunity to appeal to the EAT itself. He wrote a further letter dated 30 November 2005:
“As previously explained Mrs Dunham, being fully aware of the importance of time limits, contacted your office on the date of expiry of the time limit and offered to submit her Notification of Appeal by fax thereby ensuring that the deadline was met. The Employment Appeal Tribunal asked her to refrain from faxing the appropriate documentation and recommended that the Notice of Appeal be submitted with a covering letter, one day late by recorded delivery. We complied with this recommendation ensuring the Notice of Appeal was served prior to midday the following day. It is self evident that the Employment Appeal Tribunal bears fully responsibility in this matter and, in essence, the issue of a late Notice of Appeal does not arise in this case”.
Having dealt with other matters, Dr Purdy concluded:
“In summary, the failure to meet the deadline is not the responsibility of the appellant and, moreover, in the interest of justice this case, for the reasons outlined in the Notice of Appeal, must be heard by the Employment Appeal Tribunal”.
Those are the submissions which Dr Purdy has substantially repeated to me orally this morning. There was, he submits, a reasonable expectation that the advice given by the tribunal on the telephone was sound. The applicant had been dissuaded from pursuing a course which would have placed her in time.
HHJ Peter Clark refused the application. He stated at paragraph 3:
“I note that it is contended, most strongly in Dr Purdy’s letter to Mr Mennie (the case manager) dated 30 November 2005, that the EAT bears full responsibility for the late Notice of Appeal. I cannot accept that contention. First, the member of staff at the EAT who was said to have advised the claimant to send her Notice by recorded delivery rather than by fax is not identified so that no useful internal enquiry can be made. Secondly, it is not said when the alleged conversation took place. Thirdly, I find an inconsistency between Dr Purdy’s acceptance that he miscalculated the date and the proposition that the member of staff recommended posting the notice so that it arrived one day late. Fourthly, it is the responsibility of appellants to lodge their Notice in time. That responsibility cannot be shifted to the staff of the receiving Court or Tribunal”.
In relation to the third of those reasons, I comment that Dr Purdy does submit that the important point here is not his misunderstanding but what happened on the last day for service, Friday, 5 September. While I have not heard any convincing explanation as to why it was left so late, I accept that had the application been filed on the day before it was, this application would not have been necessary.
The applicant now seeks permission to appeal to this court. Dr Purdy, as I have said, has appeared this morning. He also submitted a skeleton argument and he does make the point to which I have just referred, that as he puts it, “the critical issue is what happened on 5 November” – the critical issue, that is, on the basis on which the case is put. What is submitted is that:
“The EAT representative, Yatish, instructed her [that is the applicant] not to fax the documents but to send the required documentation by recorded delivery with a covering letter.
We complied with this order and, under these circumstances, it is logical to conclude that the EAT bears full responsibility for the delayed submission of the Notice of Appeal and res ipse loquitor, the issue of a late submission does not arise. This is not a complicated point and I would ask the Court of Appeal to acknowledge this”.
In a later paragraph there is a further reference to Yatish:
“Firstly, the individual involved was called Yatish. It is self evident that this telephone conversation should have been recorded and logged with a précis of its contents. This is a fundamental procedural matter and an internal inquiry should be possible. If this is not the case then there are issues of competence and negligence arising, in relation to the EAT and its procedures”.
Later:
“Fourthly, as outlined above, the late submission of the Notice of Appeal is logically and entirely the responsibility of the EAT whose staff member instructed Mrs Dunham to lodge it one day late”.
I have put to Dr Purdy in the course of his submissions that this court permits the Employment Appeal Tribunal a broad discretion in procedural matters. It is only when an error of principle is made or proper considerations have not been taken into account, or improper ones taken into account, that it may be arguable that this court will intervene. The application of EAT time limits is essentially a matter for the EAT, following its jurisprudence on the subject and its usual practice. I have referred briefly to both earlier in this judgment.
The essential point made by Dr Purdy is that the applicant was entitled to rely on what she was told by Yatish. It is necessary in circumstances such as this, and I put the point to Dr Purdy, to consider the way in which the application has been made and the contents of the application. That is why I have set out in detail the submissions made in writing at the various stages. I have referred to the use of the word “we”, to the use of the word “order”, and other strong words as indicating the duty which is alleged to be on the Employment Appeal Tribunal. A fresh point is made today which is that if Yatish, as I am now only told she is, was the lady who answered the telephone, that, if she could not give an authoritative answer, she should have referred it to someone else. This illustrates in my judgment the fallacy of the argument which is being put forward. As HHJ Peter Clark stated, the duty of complying with time limits is upon the parties to litigation and their advisers. If a party chooses, as this one did, to leave it very late, it is the responsibility of the party to ensure that the relevant document is served within the time limit.
Had a comprehensive explanation been given at an early stage, I have no doubt the tribunal would have considered it. Yatish has not been mentioned until the appeal to this court. I refer to the terminology which is used. If a party seeks to have a discretion, an exceptional exercise in his or her favour, he or she must be expected to give to the court the full circumstances as to how the delay occurred, and that would have involved, in this case, setting out when the telephone call was, to whom it was made, what was said. A statement from Mrs Dunham herself, which never has arrived and still has not now emerged, would I am sure have been helpful to the tribunal. In my judgment, and I appreciate no legal advice was available to the applicant, but any applicant must be expected in the circumstances, and certainly someone advising her as Dr Purdy was, first, to serve the notice within time, but secondly if an extension had to be sought, that the full circumstances and particulars are at an early stage set out so that the tribunal could consider them.
This application has been the subject of proper proceedings in the tribunal, first the Deputy Registrar and then HHJ Peter Clark. I have said fresh points are still emerging, namely the suggestion that what was described as an “order” in one of the written documents should not have been made by the person who now emerges to be Yatish, the lady who answered the telephone, without reference to a senior officer. It is not the duty of a member of staff of the Employment Appeal Tribunal to advise litigants as to procedures to be followed.
There is not in my judgment any arguable basis for this court to interfere with the exercise of discretion by the Employment Appeal Tribunal which is properly set out in the written judgments they have given. I agree with the first, second and fourth reasons given by HHJ Peter Clark.
For the reasons I have given this application for an extension must be refused.
Order: Application refused.