CFP Independent Advisers Ltd. v Bayley [2005] EWCA Civ 664

Case No A2/2005/0574[2005] EWCA Civ 664
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)
Venue Royal Courts of JusticeDate Monday, 23rd May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
Between
CFP INDEPENDENT ADVISERS LTDApplicant-v-
Between
JULIE BAYLEYRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR CAMPOPIANO APPEARED IN PERSON for COMPANY for THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T

LORD JUSTICE MUMMERY:

[1]This is an application for permission to appeal. It is made by Mr Campopiano on behalf of his company CFP Independent Advisers Limited.[2]The background to his application is that the claimant in the proceedings, Miss J Bayley, won her case in the Employment Tribunal after a hearing in January 2004. The Tribunal unanimously decided that she was entitled to a declaration that CFP Independent Advisers Limited had made an unlawful deduction of her wages. That company was ordered to pay her the sum of £10,122.13. The extended reasons for the decision were sent to the parties on 27th April 2004.[3]This application arises out of the failure of the company to serve a Notice of Appeal against that decision within the 42 day time limit. The Employment Appeal Tribunal did not actually receive the Appeal Notice until 18th August 2004, by which date the appeal was 71 days out of time.[4]An application was made by the company to the Registrar of the Employment Appeal Tribunal for an extension of time. That application was refused by the Registrar because she held there was no good excuse for the delay or exceptional reason for granting the extension. The company then appealed to the judge, sitting in the Tribunal (His Honour Judge Peter Clark). He heard the appeal, which was brought by Mr Campopiano as director of the company, on 22nd February 2005. Miss Bayley appeared in person.[5]The judge dismissed the appeal against the Registrar's refusal. He said in paragraph 9 of his judgment:
"I have reached the conclusion that the Registrar's decision is unimpeachable. I see no grounds for interfering with it. In my judgment, even accepting the explanation given by Mr Campopiano, it does not persuade me he has a good excuse for his default in this case. In these circumstances, I shall dismiss this appeal."
[6]The company, again represented by Mr Campopiano, served an Appellant's Notice in this Court. It comes before me today because permission to appeal is required. Permission is only granted if the appeal has a real prospect of succeeding. Mr Campopiano says it does. He says that the view of Judge Peter Clark in the Employment Appeal Tribunal was that the appeal forms had been sent but not received. He believed, and this is disputed by Mr Campopiano, that the company were putting off payment and using the system. He submits that this view of the judgment is totally incorrect, as the injustice was caused at the Tribunal hearing in Carlisle, by the Chairman of the Tribunal when he granted Miss Bayley monies, in commission, claimed by her and her lawyer. He says the fact is that the commission in question was never received by the company and will never be received as the policy was not taken up by the client in question. Proof of this was given to the chairman. Mr Campopiano believes he interpreted it incorrectly. He encloses copies of the correspondence.[7]So he says the original decision was wrong and unjust. He should be allowed to appeal it, as the law should be based on common sense and justice.[8]I have mentioned to Mr Campopiano that you can only appeal in a case like this if there is a legal error in decision under appeal. It is well established in the law that an appeal against a refusal of extension of time, which was the decision made by the Employment Appeal Tribunal in this case, is difficult. It is an appeal against a discretion. It is for the appeal Tribunal, as it thinks fit, to decide whether or not to grant an extension. It will only grant an extension, if there is a good excuse for the appeal being out of time. It is only granted as an exceptional measure. Once decisions have been given, people are entitled to regard them as final, if an appeal is not brought within the time laid down in the rules. This appeal was not brought within the 42 days laid down by the rules. The length of the extension required is very long. Is there an exceptional circumstance in this case? Is there a good excuse for the delay? His Honour Judge Peter Clark thought there was not. This Court can only interfere with its decision if it can be shown by Mr Campopiano that the discretion was exercised through an error of legal principle, or if it is for some other reason plainly wrong. Although Mr Campopiano disagrees with it, I am unable to say that it was plainly wrong to refuse to grant him an extension of the 71 days required in order to validate the out of time appeal.[9]I know that Mr Compopiano will be disappointed with my conclusion that his appeal has no real prospect of succeeding. But the position is that under the rules governing appeals to this Court, I am not entitled to grant permission simply on the basis that it is contended that the original decision in Carlisle was wrong and unjust. It has to be shown that this is an exceptional case in which a long extension should be granted. Judge Peter Clark was entitled to take the same view as the Registrar, that this case is not one of those exceptional cases which should be allowed to appeal out of time. I refuse the application.