Jurkowska v Hlmad Ltd

This is an appeal by Miss Karolina Jurkowska against a decision of the Employment Appeal Tribunal (“the EAT”) dated 17 May 2007. She is the claimant in a disability discrimination claim that she commenced against her former employer, Hlmad Limited (“the employer”), in the London Central Employment Tribunal (“the ET”) in July 2006. Her employment had terminated in January 2006. The circumstances in which the claim came to be made gave rise to various preliminary issues including one as to whether the ET had jurisdiction to entertain her claim. These issues were argued before the Chairman of the ET at a pre-hearing review on 25 September 2006. The outcome was that the Chairman held that the ET did have jurisdiction to entertain the claim, which was allowed to proceed.

The employer was dissatisfied with that decision and wanted to challenge it before the EAT. The time for instituting an appeal at the EAT expired on 17 November 2006. The due institution of an appeal required the service on the EAT of various documents, one of which was served 33 minutes late. That meant that it was treated as served on the next working day, 20 November 2006, and it is agreed that it followed that the notice of appeal was served out of time. The EAT treated the late submission of the extra document as an application for an extension of time for appealing. The claimant opposed an extension but the Registrar allowed it on 30 January 2007. The claimant appealed against her decision but Underhill J, sitting alone, upheld it. He treated the appeal before him as in the nature of a re-hearing, and there is no challenge to that. The claimant’s appeal to this court, brought with the permission of Sir Henry Brooke, is against his decision. Her case is that, in allowing the extension, the judge misapplied the applicable principles.

As the employer’s temporal shortcoming was so modest, it might perhaps be thought that there would be a sufficient discretion in the EAT to grant an uncontroversial extension of time and that there would be no scope for the matter to have found its way to this court. The position is not, however, quite as simple as that because the EAT has developed relatively strict principles with regard to granting extensions of time for appealing and the issue is whether the judge had proper regard to them. The key authority is United Arab Emirates v. Abdelghafar [1995] IRLR 243, a decision of Mummery J (as he then was), as President of the EAT. Then, as now, the period within which an appeal to the EAT might be made was 42 days. The EAT’s jurisdiction to extend time limits arises under rule 37(1) of the Employment Appeal Tribunal Rules 1993 (“the EAT Rules”) and Mummery J identified the principles by reference to which the discretion under that rule should be exercised.

Mummery J started by observing, in [14], that “Those responsible for making the Rules have decided that 42 days is ample time for a disappointed party to take advice on appealing, to decide whether or not to appeal, and to prepare and serve the necessary documents.” After referring to various authorities, he identified, at [22] to [25], four guiding principles applying to the procedure of civil courts generally. First, the grant or refusal of an extension is a matter of discretion to be exercised in a principled manner in accordance with reason and justice. It requires a weighing and balancing of all the relevant factors appearing from the material before the tribunal. Second, and drawing on what Sir Thomas Bingham MR had said in Costellow v. Somerset County Council [1993] 1 All ER 952, that time problems arise at the intersection of two principles: (i) that rules of court and practice that are devised in the public interest to promote the expeditious dispatch of litigation must be observed, and that prescribed time limits are not targets to be aimed at; and (ii) a claimant should not ordinarily be denied the adjudication of his claim because of a procedural default unless the default causes prejudice to his opponent which cannot be compensated by costs. Third, that the approach indicated by those two principles is modified according to the stage the proceedings have reached. Ordinarily, and absent special circumstances, an extension of time for performing an interlocutory step in the proceedings (for example, serving a statement of case) will usually be granted. But:

“The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.”

Fourth, an extension of time is an indulgence requested by a party in default. He is not entitled to an extension or to any reasonable or legitimate expectation of receiving one. He is at most entitled to expect that the discretion relevant to his application will be exercised judicially in accordance with established principles of what is fair and reasonable. It is therefore incumbent upon him to provide a “full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.”

Having identified these four principles, Mummery J then explained, at [27] to [30], the guidelines to be followed by the EAT in considering whether to exercise its discretion to extend time for appealing. He first, however, made it clear, at [26], that they were indeed only guidelines and that they did not fetter the exercise of the discretion. I will quote them in full:

“27 (1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or the importance of compliance. When parties are notified of the reasons for the industrial tribunal’s decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.

28 (2) The tribunal’s discretion will not be exercised, unless the appellant provides the Tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a Notice of Appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.

29 (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. [That was a reference to the decision of Popplewell J in Duke v. Prospect Training Services Ltd [1989] IRLR 196]. Parties who have decided to appeal are also strongly advised not to leave service of the Notice of Appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the Notice of Appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused.

30.

Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?”

The guidance so given in Abdelghafar was approved by this court in Aziz v. Bethnal Green City Challenge Company Ltd [2000] IRLR 111. There the notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable. This court refused permission to appeal. It was submitted that the Abdelghafar guidelines imposed a more restrictive regime for appealing to the EAT than this court applied for appeals to itself. Butler-Sloss LJ, at [17], acknowledged that but pointed out, first, the distinction between the EAT and this court, the appellate jurisdiction of the EAT being confined to appeals on law; and, second, that the EAT was empowered under section 30(3) of the Employment Tribunals Act 1996 to regulate its own procedure and that “[i]t has its own good reasons for requiring the parties to deal with proposed appeals expeditiously. … It is right that on appeals on law people must get their cases in in time. In this particular case I agree with Morison J that this is an honest explanation of mistake but it is not an acceptable one.” Pill LJ and Sir Christopher Staughton agreed, the latter saying:

“20

I would agree with what Mummery J said in the United Arab Emirates case at p. 246 that the time limit ought only to be ‘relaxed in rare and exceptional cases in which there is a reason which justifies departure from the time limit laid down in the Rules.’

21

That seems to me a very proper rule for the Employment Appeal Tribunal to adopt.”

Before coming to the facts, I must refer to a further matter. During the argument Hooper LJ referred counsel to the EAT’s decision in Mrs E. Williams v. Ferrosan Ltd UKEAT/1005/03/MAA, 5 March 2004, an appeal in which he (then Hooper J) presided. The decision is not directly concerned with the principles relevant to the exercise of the EAT’s discretion to extend time for appealing, but in [12] of his judgment Hooper J made the valuable point that “[o]ne of the many advantages of the Civil Procedure Rules has been that a rule which, prior to the introduction of the CPR, had become ‘encrusted’ by numerous cases can be looked at afresh.” Abdelghafar was decided well before the introduction of the CPR, and the CPR anyway did not and do not apply to proceedings in the EAT. However, as from 1 October 2004 the EAT Rules have included a new rule 2A, which, like the CPR, applies the “overriding objective” to them. It provides:

“2A—(1) The overriding objective of these Rules is to enable the Appeal Tribunal to deal with cases justly.

(2)

Dealing with a case justly includes, so far as practicable –

(a)

ensuring that the parties are on an equal footing;

(b)

dealing with the case in ways which are proportionate to the importance and complexity of the issues;

(c)

ensuring that it is dealt with expeditiously and fairly; and

(d)

saving expense.

(3)

The parties shall assist the Appeal Tribunal to further the overriding objective.”

It was no part of either counsel’s argument at the hearing that rule 2A had had a relevant impact on the Abdelghafar guidelines, but in the light of the observations in Ferrosan the court invited counsel to supplement their oral submissions by written representations as to whether rule 2A had had any impact on the issues canvassed before us. Counsel duly provided helpful written submissions on the point and I express my gratitude to them.

Mr Pettit’s submissions, for the appellant, were that the introduction of rule 2A had made no material difference to the position that had obtained before. He pointed out, as had Butler-Sloss LJ in Aziz, that section 30 of the Employment Tribunals Act 1996 had empowered the EAT, subject to its procedure rules, to regulate its own procedure. He referred to the Employment Appeal Tribunal Practice Direction and Practice Statement 2004, which came into force on 9 December 2004. Paragraph 1.3 proclaimed that the EAT “will seek to apply the overriding objective when it exercises any power given to it by the Rules or interprets any Rule.” Paragraph 3.7 stated that:

“In determining whether to extend the time for appealing, particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the EAT and the Court of Appeal, as summarised in United Arab Emirates v. Abdelghafar [1995] ICR 65 and Aziz v. Bethnal Green City Challenge Co Ltd [2000] IRLR 111.”

Mr Pettit’s submission was that the position was, therefore, that the EAT had power to regulate its own procedure. The Abdelghafar guidelines were a good working example of that and they had been endorsed in Aziz. Moreover, in the same Practice Direction as had referred to the application of the overriding objective, the EAT had re-affirmed the Abdelghafar guidelines. It had, in effect, thereby directed how the overriding objective was to be applied in applications for extensions of time for appealing. He also referred us to the EAT decision of Underhill J in Mrs G.L. Waller v. Bromsgrove District Council PA/0019/07/CEA, 23 May 2007. It concerned an appeal against the Registrar’s refusal to extend time for appealing. The notice of appeal had been filed nine days late and, when filed, omitted to include two of the documents required by rule 3(1)(b) of the EAT Rules, namely the ET1 and the ET3, which were only faxed two days later when the EAT pointed out the omission. The net result was that the notice of appeal was in fact filed eleven days late.

The judge found that the explanation for the delay offered no real excuse, and that it appeared that the omission to serve the notice in time was simply an oversight. He referred to Abdelghafar and Aziz, recording, in [6], that “[t]he 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 is necessary in the interest of justice.” He concluded that an application of the Abdelghafar approach would result in there being no basis for an extension.

Counsel for the appellant submitted, however, that that approach was now obsolete following rule 2A’s introduction of the overriding objective. Underhill J summarised his submission as being 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.”

Underhill J rejected the submission, and I quote what he said:

“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’ than they were one 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.”

Mr Pettit invited us to regard Waller as having been correctly decided in the manner in which it dealt with the “overriding objective” point.

Mr Downey, for the employer, supplemented his earlier oral submissions by making various written submissions as to the circumstances identified in Abdelghafar in which it may be just to extend time. In particular, he said that Abdelghafar was not authority for the proposition that the appellant’s explanation for his default must be a good one, or therefore that it must excuse the default, before the discretion can be exercised in his favour. Despite the fact that both the second sentence of [28] and question (b) in [30] of Mummery J’s judgment appear to suggest the contrary, I would accept that it may not in every case be a pre-condition of success for the appellant to show a good excuse for his delay, although in the ordinary run of cases it probably will be. First, I regard the observations in [29] as indicating that, once the explanation is in, and even if it may not afford a good excuse, the EAT must still consider all the circumstances of the case in order to consider whether or not it will be just to grant an extension. Second, in Abdelghafar itself Mummery J extended time even though he acknowledged, at [32], that “no acceptable excuse was put forward for the failure to comply with the time limits.” The reason for his indulgence, despite that failure, was that he regarded the case as raising an important question of state immunity, and if the employment tribunal had got that wrong, the only way of putting it right was to extend the time for appealing. The decision in Abdelghafar underlines that the principles set out by Mummery J are indeed guidelines and that every case will turn on its own facts. Mummery J had made just that point in [26] of his judgment, where he said “They are only guidelines. They do not fetter the exercise of the discretion.”

There will therefore be cases, and Abdelghafar was one, where time will be extended even if there is no good excuse for the delay. In the ordinary run of cases, however, and absent some such exceptional circumstance as Mummery J identified in Abdelghafar, it will be necessary for a good excuse to be shown. But there will ordinarily be no injustice in this. Time limits are required to be respected. It cannot automatically be enough for an appellant seeking an extension of time to say that he had simply forgotten the time limit, or had been too busy with other things.

Mr Downey submitted that if, contrary to his submission, the Abdelghafar guidelines did impose a rigid requirement that in every case it was necessary for the appellant to provide not just a full and honest explanation for the delay, but also a good excuse for it, then such an approach was inconsistent with the overriding objective explained in rule 2A. He said that dealing with a case justly requires all the circumstances of the case to be considered.

I would accept that last submission but say first that I consider that Underhill J was correct to conclude, as he did in Waller, that rule 2A has not somehow trumped the Abdelghafar guidelines so as to require the EAT to put them on one side and instead approach extension applications by reference to some wholly undefined and unprincipled appeal to justice. The contrary argument ignores the basic point that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made. The Abdelghafar principles reflect that rules as to time limits are expected to be respected, and there is precisely nothing unjust or unfair about that. Litigants are not entitled to expect rules of practice to be re-written so as to accommodate their own negligence, idleness or incompetence. But the principles also recognise that nobody is perfect, that errors will happen, that time limits will be missed and that in appropriate circumstances it may therefore be just to extend time for compliance. That, however, is in the nature of an indulgence and the guidelines are directed at outlining the approach to the question of whether it will or may be fair so to indulge the appellant. In the ordinary case a good explanation and excuse will have to be shown. But even if the explanation does not amount to a good excuse, there may be exceptional circumstances which anyway justify an extension. The guidelines are not rigid but they do prescribe a principled approach to an application for an extension of time. Nothing less should be expected from a developed system of civil law. As for Mr Downey’s point that the EAT should be required to take all the circumstances into account when considering applications for an extension of time for appealing, I regard the Abdelghafar principles as requiring just that. There is, in my judgment, no scope for commissioning the rule 2A overriding objective into playing some additional role when it comes to the consideration of an extension of time for appealing. Abdelghafar tells the court all it needs to know in order to deal with an extension application justly.

The only further observation I would make before coming to the facts is to comment on the last sentence of [27] in Mummery J’s judgment in Abdelghafar, namely that “The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.” I do not interpret that as meaning that the appellant must endeavour to show that his case is a “rare and exceptional” one. I interpret it as meaning no more than that, given the thrust of the guidelines, it will only be in rare and exceptional cases that it will be appropriate to extend time. This case is one which both the Registrar and the judge concluded was such a rare and exceptional one. I will now set out the facts in more detail, and also refer to the applicable rules.

The hearing before the ET chairman on 25 September 2006 was conducted by counsel on both sides, neither of whom was accompanied by his instructing solicitor. Mr Bellara appeared for the claimant. Mr Downey appeared for the employer. He was instructed by DLA Piper UK LLP (“DLA”), solicitors. At the conclusion of the hearing, the Chairman gave her decision orally. She then produced a formal written judgment recording her decision. It set out the title of the proceedings, where the hearing had been held and the identity of the Chairman and of counsel. Under the heading “Judgment”, it stated that “The judgment of the Tribunal is that it has jurisdiction to hear the Claimant’s claims of disability discrimination.” Below that was the Chairman’s signature, over a stamp recording she had signed it on 25 September 2006, the date being in manuscript; and under that was a stamp with the words “Judgment sent to the Parties on [ ] and entered on the Register”, the date of 25 September having been inserted in manuscript into the blank, and there being what appears to be the signature of the clerk of the tribunal above the stamped words “For Secretary of the Tribunals.”

Copies of the judgment were given to each counsel before they left the building. Mr Downey did not provide his or any copy to DLA, nor did he tell them that he had been provided with it. He had been asked to keep his papers in order to advise on a possible appeal and he simply kept the judgment with them. Underhill J found that he did not appreciate that it had been given to him on the basis that no other copy would be sent to DLA. In that context, rule 29 of the Employment Tribunals of Procedure (in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, “the ET Rules”) provides, so far as material as follows:

“29.

Form and content of judgments

(1)

When judgment is reserved a written judgment shall be sent to the parties as soon as practicable. All judgments (whether issued orally or in writing) shall be recorded in writing and signed by the chairman.

(2)

The Secretary shall provide a copy of the judgment to each of the parties and, where the proceedings were referred to the tribunal by a court, to that court. The Secretary shall include guidance to the parties on how the judgment may be reviewed or appealed.”

The Chairman’s judgment was not reserved, and so rule 29(2) applied. The evidence before the judge, in a letter from the London Central ET, was that it is the practice of that tribunal, at least in some cases, to supply copies of judgments to the parties at the hearing as it did in this case. The judge inferred that London Central treated that as discharging its obligation under rule 29(2).

That rule does not itself prescribe how a judgment is to be “provided” to the parties, but rule 61 of the ET Rules provides, so far as material, as follows:

“61.

Notices, etc

(1)

Any notice given or document sent under these rules shall (unless a chairman or tribunal orders otherwise) be in writing and may be given or sent –

(a)

by post;

(b)

by fax or other means of electronic communication; or

(c)

by personal delivery ….

(4)

All notices and documents required or authorised by these rules to be sent or given to any person listed below may be sent or delivered at

…

(h)

in the case of a notice or document directed to a party –

(i)

the address specified in the claim or response to which notices and documents are to be sent, or in a notice under paragraph (5); or

(ii)

if no such address has been specified, or if a notice sent to such an address has been returned …

and a notice or document sent or given to the authorised representative of a party shall be taken to have been sent or given to that party.”

One question raised before us, although in the event not argued at length, was whether Mr Downey was an “authorised representative” for the purposes of that rule, so that the giving of the judgment to him meant that it should be taken as having been sent or given to the employer.

The employer, through Mr Downey, also asked at the hearing, as it was entitled to, for written reasons for the Chairman’s decision: see rule 30(5). The reasons were sent to the parties on 6 October 2006. Their first page set out the title to the proceedings and the date of the hearing, 25 September 2006. Under the heading “Reasons of the Employment Tribunal”, the reasons were set out over 21 paragraphs. Paragraph 21 opened by saying that “Therefore in summary, the conclusion of the Tribunal is that this Tribunal has jurisdiction to hear the claim. It does so for the reasons state above ….”, continuing with certain qualifications as to what the ET was finding. The reasons nowhere included a separate form of judgment. They were no more than they purported to be, namely the reasons for a particular judgment, that is the one dated 25 September 2006 that had been handed to counsel.

The employer wished to appeal against the judgment of 25 September. There was an issue before the judge as to when the relevant time limit expired. That turned on rule 3(3) of the EAT Rules, which prescribes different time periods according to whether the decision the subject of the proposed appeal is a “judgment” or an “order” of the ET. The distinction is described in rule 28 of the ET Rules. The judge held that the decision of 25 September was a “judgment” so that the time for appealing to the EAT was 42 days from when the Chairman’s written reasons were sent to the parties. That meant that the last day for instituting the appeal to the EAT was 17 November 2006. There is no challenge to that part of the judge’s decision.

Rule 3(1) of the EAT Rules prescribes how an appeal to the EAT against a decision of an ET is instituted. The due institution of an appeal requires the service on the EAT within the 42-day period of: (i) a notice of appeal in, or substantially in accordance with, a specified form, (ii) a copy of any claim or response in the proceedings, or an explanation why either is not included, and (iii) (by rule 3(1)(c)):

“in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included;” (my emphasis)

The DLA office dealing with the case was in Sheffield and it enlisted the aid of Mr Downey’s clerk to help with the service of the documents on the EAT. At 2.15 pm on 17 November, the last day for appealing, he served the employer’s notice of appeal on the EAT, accompanied by all other documents required by rule 3 apart from a copy of “the written record of the judgment”, meaning the judgment of which a copy had been provided to Mr Downey. The notice of appeal was signed by DLA. Paragraph 5 read:

“5.

Copies of –

(a)

the written record of the employment tribunal’s judgment, decision or order and the written reasons of the employment tribunal;

(b)

the claim (ET1)

(c)

the response (ET3)

are attached to this notice.”

Paragraph 5(a) reflects an adaptation of the relevant language of rule 3(1)(c) of the EAT Rules. Its assertion that a copy of the judgment was attached was wrong. It is common ground that its inclusion was an essential element of the due institution of the employer’s appeal. No copy was attached because DLA had never received it. The ET had not posted them a copy and nor did Mr Downey provide them with one. The judge also found that DLA did not appreciate that they had not included a copy of the judgment. That is an inference that can be drawn from paragraph 5(a) of the notice of appeal, which does not appear to reflect the application of any thought by DLA to what was required in order to comply with rule 3.

But if DLA were ignorant of the omission, the staff at the EAT were not. They spotted it immediately and at 3.37 pm on 17 November sent a fax to DLA informing them of the omission to include a copy of the judgment. DLA contacted the ET, which promptly sent them one. DLA sent it to Mr Downey’s chambers, and Mr Downey’s clerk faxed it to the EAT. It was sent at 4.33 pm on 17 November, within an hour of the EAT’s fax, and so DLA and counsel’s clerk had moved with commendable expedition. They did, therefore, provide a copy of the judgment on the last day for appealing, but as it was only sent after the 4.00 pm deadline prescribed by the EAT Practice Direction it was treated as served on the next working day, 20 November. The employer needed and sought an extension of time, which the Registrar granted and the judge upheld.

The employer’s explanations for the delay were contained in the final submissions presented to the EAT in support of the extension application. We were told that it is the practice of the EAT for what I might call the Abdelghafar explanation to be provided by written submissions. If that is the practice, I regard it as an unsatisfactory one. It appears to me obvious that such explanations ought to be made by a witness statement by someone able to speak to the relevant facts. No point, however, appears to have been taken below as to the procedure and I say no more about it. The proffered explanation was that DLA did not receive a copy of “the written record of the judgment” of 25 September. They only received the “reasons”, of which the final paragraph recorded the ET’s conclusion on the jurisdiction issue. They were unaware that any separate “written record of the judgment” had been issued. As far as they were aware, the only written record of the judgment was that contained in the “reasons”, as they believed; according to the submissions, “they genuinely believed that the written record of the judgment of the tribunal was that set out in the document headed ‘Reasons of the Employment Tribunal’ sent to the parties on 6 October 2006.” Instructions to proceed with the appeal were only given to DLA on 16 November 2006, the essence of the explanation for their apparent lateness being that down to then the employer wanted to be certain whether the claimant was intending to proceed with the substantive claim, and only wanted to pursue an appeal if she was. When DLA received the EAT’s fax at 3.37 pm informing them of the missing document, they were left with little time to put the matter right, a circumstance aggravated by the fact that (a) the solicitor with conduct of the matter was away ill, (b) Mr Downey was in court and could not be contacted, and (c) DLA were uncertain as to what was missing, because they believed they had provided the written record of the judgment.

Mr Downey represented the employer before Underhill J. He acknowledged that the authorities required the employer to show that the circumstances in which the delay arose were sufficiently rare and exceptional to justify the extension. The circumstances relied upon were that (a) DLA had not received the judgment, and (b) they would anyway reasonably, albeit wrongly, have regarded the written reasons as constituting or incorporating the judgment. As I have said, their case was that they did so regard the reasons. The judge regarded those as powerful submissions. His view was that, however long it had been the practice of the London Central ET to provide judgments to advocates at the hearing and not also to send them by post to the parties, that was not expressly contemplated by or referred to in the ET Rules; and he could

“… see nothing surprising in a firm of solicitors, even (perhaps especially) a firm of solicitors experienced in employment law, expecting that any formal decision of the Tribunal would be ‘sent to the parties’ in the natural sense of that phrase, i.e. that it would be delivered by post to the address specified in the ET1 or the ET3.”

In addition, the judge was impressed that such solicitors might also reasonably expect that the judgment, if not otherwise supplied earlier, would arrive with the requested reasons in a single document, as happens when the ET reserves judgment. He acknowledged that anyone reading the reasons supplied in the present case “with an eagle eye” would appreciate they were only reasons, and did not incorporate the formal judgment; but in a case in which the judgment had not been received earlier, the judge regarded that to be venial. His conclusion was that:

“I therefore regard DLA Piper’s failure to appreciate that they had failed to include a judgment with the appeal documents as pardonable and as representing the sort of exceptional circumstance which ought to attract the exercise of a discretion to extend where the error was promptly rectified as soon as brought to their attention. That is so in my judgment even though they had waited until the last day to institute their appeal.”

Mr Bellara, for the claimant, submitted to the judge in support of the contrary conclusion that it was relevant that even though DLA had not received the judgment, Mr Downey had. He was part of the employer’s legal team and was its sole representative on 25 September, and it was urged that the employer could not rely upon his failure to pass the judgment on to DLA. The judge was not impressed by that. First, he pointed out that the provision of the judgment to Mr Downey was not accompanied by the guidance prescribed by rule 29(2) as to how the judgment may be appealed, an omission pointing away from any inference that its handing to Mr Downey was intended to constitute the formal provision of the judgment for the purposes of that rule. Second, the document so handed recorded that it had been “sent to the parties”, the natural sense of which was that it had been so sent by post in the usual way, which is how Mr Downey was entitled to understand the position. The judge recorded that Mr Downey had, however, disclaimed having gone through these particular thought processes at the time. His position, as stated by the judge, was simply that “there was nothing to suggest to him that he was being given the only copy of the judgment and on the basis that he was responsible for passing it on to his solicitors or client.” The judge’s view was that Mr Downey’s receipt of the judgment was not fatal to the grant of an extension.

Mr Downey’s submission to the judge on this point was that even if the personal delivery of the judgment to an “authorised representative” of the employer would in principle amount to effective service upon the employer (rule 61(4) of the ET Rules), counsel instructed by a firm of solicitors which is itself named as the party’s representative in the ET1 or the ET3 cannot also be regarded as such an “authorised representative.” The judge was not convinced by that, expressing the view that it would be surprising if a barrister instructed by an authorised representative could not be treated as having authority on behalf of that representative to accept service of documents at the end of a hearing. He declined, however, to decide this question. It was enough for the employer’s purposes that, even if Mr Downey was such an “authorised representative”, it was understandable that he did not appreciate it at the time.

The judge’s conclusion was, therefore, that this was a case in which the circumstances were sufficiently rare and exceptional to justify an extension of time, and it made no difference that the employer had left it until the last minute to appeal, a factor that he recognised might cause the EAT to regard it with a lack of sympathy.

Mr Pettit, for the claimant, submitted that the judge had declined to deal sufficiently with the point that, as he asserted, Mr Downey must be regarded as having been an “authorised representative” of the employer for the purposes of the service on the employer of the judgment, and that the judgment was in fact served upon him. As from then, the employer had the judgment and it could not argue that it did not have it for the purpose of serving it on the EAT together with the other documents that were required to be served in order to institute an effective appeal.

Mr Pettit’s further argument was that Underhill J was also in error in failing to take due account of the fact that, when DLA were preparing the appeal papers, they failed to notice that there was no judgment document. He said there was no evidence as to why they overlooked this. That is strictly correct, the matter having been dealt with by way of written submissions to the effect that DLA believed that the reasons incorporated the judgment. The judge proceeded on the basis that they were entitled to regard the reasons as doing so.

Mr Pettit also complained that the judge did not adequately consider and weigh the reasons as to why the employer had left it until the last day to serve the notice of appeal. There was some material about that before the judge, but in [17] he merely said this:

“First, Mr Downey sought to explain, and to some extent to justify, why his clients and those instructing him had left it so late to institute the appeal in time. Some of what he said was controversial, though I think it is fair to say at least that it does not appear that this was a case of wanton or negligent delay. But I have not thought it necessary to weigh those reasons for the purpose of this judgment. Although the cases rightly emphasise that the courts will not be tender towards those who leave it to the last minute to make applications which then turn out to be deficient for some technical reason, they do not go so far as to say that in a proper case an extension can never be granted where the appeal has been instituted on the last day; and for the reasons which I have given, I regard this as a proper case.”

Mr Downey, in response, submitted that the “authorised representative” point was not at the forefront of Underhill J’s reasons because it was one that he had raised, in support of the negative proposition that he could not have been regarded as such a representative. It was only then that Mr Bellara relied upon the point in support of the contrary proposition that the giving of the judgment to Mr Downey was to be treated as service on the employer. The inference from the judge’s judgment is that Mr Downey is correct as to the way that the “authorised representative” point arose. Having said that, the point was before the judge, and I cannot see why Mr Pettit should not be entitled to make of it what he can on this appeal, particularly as it was that point which Sir Henry Brooke considered justified the giving of permission to appeal. Mr Downey further submitted that in any event, in the unusual circumstances of this case, the manner in which the judge exercised his discretion could not be faulted.

I have doubts as to whether Mr Downey was an “authorised representative” of the employer for the purpose of having documents served upon him on behalf of the employer. That he was undoubtedly an authorised spokesman for the purpose of the hearing on 25 September 2006 would not in my view automatically also make him an “authorised representative” for that wider purpose. I do not, however, decide this point. That is because, even if he was such a representative, I consider the judge was entitled to accept Mr Downey’s statement that it did not occur to him that he was being given the only copy of the judgment on the basis that he would pass it on to DLA. Whilst Mr Downey did not assert that he placed any reliance on them, I have referred to the two matters that the judge also identified about the form of the judgment and the manner in which it was provided to Mr Downey which would, had Mr Downey thought about them, have tended to support him in the view he had anyway formed. The giving of the judgment to Mr Downey was an unusual way of dealing with the matter; and, in the context of the essentially practical considerations raised by this appeal, I would not regard his receipt of the judgment as one which must be notionally attributed to the employer, or to DLA, with the consequence that the employer is left with no excuse for its non-inclusion with the documents served on the EAT on 17 November 2006. In my view the background against which the judge’s decision falls to be considered is one in which both the employer and DLA were ignorant of the provision of the judgment to Mr Downey; and that the judge was entitled to find that Mr Downey was unaware that he alone was being given a copy of the judgment and so ought to pass it on.

On that basis I regard the critical issue before the judge as whether the admittedly erroneous manner in which DLA handled the preparation of the appeal documents was such that they really had no excuse for omitting the inclusion of the judgment; or whether they were entitled to say that the circumstances in which they came to omit it, coupled with their very prompt correction of the error once it was pointed out, fairly justified the short extension of time for which the employer applied.

The strict view is that DLA should have known better. They should have known that, in circumstances such as those in this case, the practice is for the ET to issue a separate written judgment recording its oral decision; and that the subsequent provision of written reasons for it will not do double duty as amounting also to the judgment. A reading of rule 3(1)(c) of the EAT Rules makes it clear that the “written record of the judgment” is different from “the written reasons for the judgment”. DLA ought, it can be said, specifically to have considered the requirements of rule 3(1)(c) with a view to ensuring that they had complied with the formalities. Moreover, the rule contemplates that they may not have any written reasons (in which event the proposing appellant must explain why), but does not suggest that there will ever be a case in which there will be no judgment. In addition, had they researched the matter more widely, a consideration of rules 29 and 30 of the ET Rules would have made it clear that the judgment is one thing and the reasons are another.

DLA did not, however, apparently go through that thought process. Their position appears to have been that as no judgment had been provided to them, the written reasons (which had) must be taken to meet the dual requirements of rule 3(1)(c), particularly as the last paragraph of the reasons recorded the terms of the decision that the ET had made.

That was the explanation that DLA provided. The judge explained why he regarded it as an acceptable one, describing DLA’s error in the particular circumstances as venial. In his view the circumstances in which they came to make the error were the sort of exceptional circumstances that ought to attract the exercise of the court’s discretion to extend time, and even though the employer had waited until the last day to institute their appeal.

For my part, whilst I accept that the circumstances were unusual, I have had reservations about that conclusion. But I consider also that to adopt what I have referred to as the strict view in those circumstances, and to conclude that it was fatal to the grant of any extension, is probably to rely more heavily on hindsight than the fair disposal of the employer’s case ought to allow. It is easy now to see how DLA should have handled the matter. But the more relevant question is whether, in the light of the circumstances as they in fact found them when preparing the appeal documents, the case was one that justified the judge in arriving at the conclusion that he did.

The decision as to whether to extend time was pre-eminently a discretionary one for the judge. Underhill J is an experienced judge of the EAT and there is no doubt that he was fully aware of the Abdelghafar principles. He rejected the proposition that Mr Downey’s receipt of the judgment should be notionally attributed to the employer, and I consider that he was entitled to do so for the reasons he gave. In the circumstances in which no judgment had in fact been sent to DLA or the employer, but in which the reasons had, he regarded DLA’s “failure to appreciate that they had failed to include a judgment with the appeal documents as pardonable ….” He regarded the circumstances as representing the sort of exceptional circumstances which ought to attract a discretionary extension of time where the error was promptly rectified as soon as it was pointed out. He said expressly that that was his judgment even though the employer had waited until the last day to institute the appeal, a point which reflected his recognition that the EAT will ordinarily be less tender to appellants who leave everything to the last minute. I do not accept Mr Pettit’s submission that the judge was in error in failing to discuss, and weigh up, the reasons why the institution of the appeal was left to the last day. The judge knew that it was so left, and an appellant is fully entitled to take the full 42 days for instituting his appeal. He of course runs a risk in doing so, because things can go wrong at the last minute. But the judge in terms decided, in [12], that this was a case for a discretionary extension even though everything had been left to the last day. In my view he was entitled so to decide.

This court ought only to consider reviewing Underhill J’s decision if it is satisfied that he misdirected himself in one or more respects in applying the Abdelghafar guidance. I am not satisfied that he did. I consider that he was entitled to make the decision that he did. I would dismiss the appeal.

I agree with Rimer LJ that the appeal should be dismissed essentially for the reasons which he gives. I, like Rimer LJ, am satisfied that Underhill J was entitled to reach the conclusion which he did.

The document which was missing when the appeal was filed and which arrived 33 minutes late was a formal document, namely a copy of the written record of the judgment of the ET. That said no more than “The judgment of the Tribunal is that it has jurisdiction to hear the Claimant’s claims of disability discrimination.” The written reasons of the ET which were supplied made it clear that the ET had held that it did have jurisdiction and gave the reasons for this conclusion.

By virtue of Rule 4, on receipt of a notice of appeal, the Registrar seals the notice and serves a sealed copy on the respondent. We do not know precisely when Miss Jurkowska was sent or first learnt about the notice of appeal. As I understand the procedure (and my understanding may be imperfect) the appellant’s solicitors for the purposes of the ET hearing (Battersea Law Centre) would have been sent a copy of the notice of appeal, albeit that it was defective, on 17 November. Apparently the Battersea Law Centre’s file of papers with regard to this matter were not forwarded to the solicitors who represented Miss Jurkowska on the appeal from the decision of the Registrar to grant an extension (see page B18) and therefore we do not know whether the notice of appeal was sent on 17 November.

What is clear is that on 22 November the EAT wrote to Miss Jurkowska herself telling her, amongst other things, that the faxed letter of 17 November sent at 4.33 pm was being treated as an application for an extension of time and asking for her representations.

Rule 39(1) provides that failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs. The expression “Appeal Tribunal” includes the Registrar (see Rule 2). The Tribunal may also in the interests of justice dispense with the taking of any step required by the Rules (Rule 39(2)). The fax sent by the Deputy Registrar timed at 15.37 informing DLA that the appeal had not been properly instituted appears to be a direction under Rule 39.

The application for an extension of time contained (or which was deemed to be contained) in the 4.33 pm faxed letter was considered by the Registrar pursuant to Rule 20 which provides:

“Every interim application made to the Appeal Tribunal shall be considered in the first place by the Registrar who shall have regard to rule 2A (the overriding objective) ...

In paragraph 19 of his judgment, Rimer LJ writes:

There is, in my judgment, no scope for commissioning the rule 2A overriding objective into playing some additional role when it comes to the consideration of an extension of time for appealing. Abdelghafar tells the court all it needs to know in order to deal with an extension application justly.

I have some doubts about that in the light particularly of Rule 20 but I do not need to expand upon my doubts given that I very largely agree with the reasons given by Rimer LJ.

The Registrar had before her a letter from Miss Jurkowska’s solicitors dated December 4 opposing the application for an extension and enclosing written submissions. It was not suggested that Miss Jurkowska had suffered any prejudice by the omission of the formal document which, by virtue of Rule 3, ought to have accompanied the notice of appeal and the other documents. If, for example, neither she nor the Battersea Law Centre had been informed about the notice of appeal until receipt of the 22^nd November letter and if she had assumed that the period for appealing had expired, one might have expected that to be mentioned if that caused her prejudice, if only of a psychological nature.

In my view the failure to serve the formal document on the EAT until 4.33 on the last day for service on the EAT of the notice of appeal caused no prejudice to the respondent and none has been suggested, except, of course, the prejudice which she will suffer should the necessary extension be granted. Rimer LJ in paragraph 4 of his judgment has cited the words of Sir Thomas Bingham MR in Costellow v. Somerset County Council [1993] 1 All ER 952, to the effect that time problems arise at the intersection of two principles: (i) that rules of court and practice that are devised in the public interest to promote the expeditious dispatch of litigation must be observed, and that prescribed time limits are not targets to be aimed at; and (ii) a claimant should not ordinarily be denied the adjudication of his claim because of a procedural default unless the default causes prejudice to his opponent which cannot be compensated by costs. There was, as I say , no prejudice to Miss Jurkowska.

I also have doubts about the following passage of the judgment of Mummery J in Abdelghafar, quoted by Rimer LJ in paragraph 6 of his judgment:

Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance.

I do not follow why a lack of prejudice is an irrelevant factor if an application is to be dealt with justly. I would be concerned if any desire on the part of the EAT to reduce the work involved in handling applications for extensions of time was given undue weight.

In reaching the conclusion that Rimer LJ is right to dismiss the appeal, I am comforted by the fact that the very experienced Registrar of the EAT thought it right to grant an extension as well as Underhill J. I am also comforted by the fact that if Miss Jurkowska had lost before the ET and had omitted to include before 4.00 pm a copy of the written record of the judgment, I am quite sure that an extension would have been granted. If I am right, why should the fact that the respondent was represented by a well known firm of solicitors very experienced in this field make any difference on the facts of this case? If the respondent had been represented by a less experienced firm or even a firm the reputation of which was not good, would that make any difference on the facts of this case?

Every discretionary power, both administrative and judicial, carries an inbuilt problem. To ensure a reasonable degree of consistency – an elementary requirement both of adjudication and of public administration – a policy is frequently helpful and sometimes indispensable. It means that people have some idea where they stand and that arbitrary distinctions are not made between similar cases. In public administration a policy of this kind is commonly found in unitary written form. In the judicial sphere it is ordinarily found either in appellate decisions designed to give guidance or in a series of first-instance decisions from which a policy or practice emerges. Less often it may be found in a practice statement of some kind. But, if the discretion is to continue to be real, decision-makers must not let a policy ossify into a rule: they must always be prepared to deviate from it if the facts warrant it.

In this way, a discretion which starts life at the centre of a statutory power, trammelled only by broad principles of law, shifts to the periphery of the power as its exercise comes, more or less rapidly, to be policy-guided. This is the natural and proper process which, as Lord Justice Rimer recounts in his judgment, has taken place in relation to the statutory discretion to enlarge time for appealing from an employment tribunal to the EAT. It is a process which in its nature seeks to ensure something that is now spelt out in Rule 2A(2)(a) – that the parties are on an equal footing, not only as between themselves but in relation to other parties in other cases.

This court has more than once approved the policy adopted by the EAT for the administration of the statutory rule requiring any appeal to be instituted within 42 days of the sending out of the tribunal’s reasons. It is a policy which is unforgiving, but it has never been suggested that its effect is to stifle the discretion given by the rule to enlarge time. Its purpose and effect can nevertheless fairly be said to be an equality of misery: anyone who is caught out by the 42-day time limit has, barring something quite exceptional, only himself or herself to blame for leaving it so late to institute their appeal. But one has only to consider the alternatives to see why the policy is justifiable: either any honest excuse would be capable of securing an enlargement of time, shifting the focus to how long a consequential delay might be pardoned in one case or another; or a checklist of acceptable and unacceptable excuses would develop, distinguishing between such things as transport delays, postal delays, administrative oversights, lack of funds, staff sickness, late advice and so forth. This is why judges of this court from time to time find themselves denying permission to appeal from a refusal of the EAT to waive a delay of a few minutes or hours in the delivery of appeal papers to its registry, where they would not have hesitated to enlarge time had there been a similar lapse in filing the papers in the Civil Appeals Office.

I am therefore reluctant to countenance the kind of waiver that was granted here by Underhill J. It seems to me to come close to making an unjustified exception to a policy which, though harsh, is itself justified. But the first thing one must remember is that any policy which does not admit of exceptions has been unlawfully transmuted into a rule. So Underhill J was right not merely to fall back upon the proposition (which is the bedrock of the policy) that if the appellants’ solicitors had not left it till the last moment to institute the appeal, the omission could have been repaired in good time. That, however, is not to say that the proposition is immaterial: in many cases it says all that needs to be said.

If there is an error in the present case, therefore, it lies not in the making of an exception but in the grounds on which this was done. As to these, the rules explicitly require both the record of the judgment and the written reasons for it to form part of the appeal papers, and I can see no excuse for a solicitor’s firm not appreciating this. I have no doubt whatever that the employer’s counsel was an authorised representative of the company for the purpose of receiving the tribunal’s judgment. The employer cannot therefore be regarded as not having received it. What is more, the employer’s solicitors received a fresh copy by return of fax from the tribunal on 17 November, but instead of forwarding it to the EAT they sent it to counsel’s chambers, which sent it on to the EAT. All of this, however, took place after the registry had closed.

What, however, influenced Underhill J was the fact that the tribunal had adopted a practice of handing its written judgments to an authorised representative rather than posting them to the parties or their lawyers at the addresses given on the ET1 and ET3 forms, and that someone receiving the written reasons (as the employers’ solicitors had duly done) would not readily appreciate that they did not incorporate the judgment. More obliquely, the judge was also influenced by the fact that the judgment handed to counsel was not accompanied by the prescribed form of guidance about appeals, suggesting that it might not constitute formal delivery. He also noted that the judgment recorded that it had been “sent to the parties”, suggesting that a copy had been posted to the company’s solicitors; but, although counsel himself honourably disclaimed any reliance on this, the judge took the view that it was not fatal to the enlargement of time. The judge nevertheless went on to conclude that, although counsel had indeed been an authorised representative of the employer when he was handed the judgment, it was understandable that he did not appreciate it at the time, and that for the rest the circumstances were such as to make it right to extend time.

Underhill J had, as Lord Justice Rimer recounts, begun by directing himself, following Abdelghafar, that extensions of time were only to be granted in “rare and exceptional circumstances”. In a significant sense this approach puts the cart before the horse. What Lord Justice Mummery was explaining in Abdelghafar was that it was only rarely and exceptionally that the EAT would be satisfied that there was a reason which justified departure from the time limits – not that there could be a departure from the time limits if the reason for doing so was rare and exceptional. The real question is whether, given the generous time limit, there was a good and acceptable excuse for missing it.

In the present case the excuse was that the solicitor’s failure to appreciate that the reasons and the judgment were two separate documents, and that they did not have the latter, was “entirely understandable”. If the decision had been mine, I would not have accepted this as a sufficient excuse for two connected reasons: first that, but for the failure to submit the appeal papers before the afternoon of the final day, the mistake could and would have been rectified in good time; secondly, that the reason given for delaying instituting the appeal until then was a bad one: even ignoring the fact that giving notice of appeal is if anything an encouragement to settle, the right way to stop time running while a settlement is considered is to secure agreement to it. Moreover, but less materially, for some still unexplained reason the judgment, when received by the solicitors, was sent to counsel instead of to the EAT. I would also not have thought it enough to characterise the error about the nature of the written reasons as “entirely understandable”: explicable, perhaps; excusable, no, at least in a lawyer. The question, however, is whether Underhill J was entitled to take a different view.

With the greatest of hesitation I am prepared to accept that he was. I do so principally because this reflects the view taken by two members of this court with experience of sitting in the EAT. But since that view is arrived at by them for partly divergent reasons, I should make it clear that I go no further than Lord Justice Rimer has gone. If there is a case for revising the doctrine of Abdelghafar, it is not a case that we have been called upon to decide. Both that judgment and the practice of the EAT remain intact. All that this appeal decides is that Underhill J’s exercise of the power exceptionally to waive the prescribed time limit by half an hour or so was, on the particular facts before him, not an unlawful exercise of his discretion .

For this reason Ms Jurkowska’s appeal fails.