Gateshead Metropolitan Borough Council v Mills & Ors [1992] UKEAT 31_92_1607

EAT
Gateshead Metropolitan Borough Council v Mills & Ors
[1992] UKEAT 31_92_1607 · 1992-07-16
MR JUSTICE WOOD (PRESIDENT): This is an appeal from a decision of the Deputy Registrar of this Court which is dated the 5th February 1992 - I think received by the parties somewhat later - in which he considered an application from those representing the Gateshead Metropolitan Borough Council, for an extension of time in which to enter a Notice of Appeal. He refused that in the exercise of his discretion and the Council now appeal.The time table which is relevant for the present case is as follows. An Industrial Tribunal sitting at Newcastle Upon Tyne in July 1991, considered five cases which they heard together in connection with redundancy or early retirement payments by the Gateshead Metropolitan Borough Council. This was in connection with education and the Council were the Local Authority relevant to those five Applicants.A decision was given, but was not promulgated until the 19th November 1991. The time limitation for an appeal to this Tribunal is 42 days, therefore the Notice of Appeal had to be received at this Tribunal Office on or by 30th December 1991.The Legal Department of the Borough Council received those reasons, which extend over some 7 or 8 pages and the matter was considered at a meeting on the 25th November. Mr Spafford, who is a senior member of that Legal Department was on holiday and did not return until later. He then considered the situation and it was decided to seek the advice of leading Counsel. Leading Counsel was instructed on Thursday 19th December and in fact, rang through the following day, Friday 20th, advising that there were grounds for appeal. I do not know, but I imagine, that some identification of those grounds must have been clear to Mr Spafford at that stage. It was arranged between leading Counsel, his Clerk and Mr Spafford that junior Counsel in the same Chambers would draft the Notice of Appeal and that it would be filed with this Court by the relevant date, the 30th December. By Friday, 27th December, which be it noted is during the holiday season, Mr Spafford was anxious and realised that his time was running out. He therefore prepared a letter to be sent to this Office. It was typed but was not ready to be sent until that Monday 30th December. On that day he not only posted it, but also sent it through by facsimile, and it was received on that date.No decision was reached on the application contained in that letter asking for extension of time before the Notice of Appeal was filed and in due course a letter was sent to this Tribunal dated 9th January 1992, which enclosed a formal Notice of Appeal, and a request for an extension of time. That was refused, this appeal follows.The appeal to me is opposed by Mr Aston, who is a consultant in employment matters. He emphasises, as indeed I have emphasised, that the realisation of the running of time is quite apparent from the affidavit which is before me from Mr Spafford himself. Mr Aston takes the point here that you have skilled professional advisers and that they have simply failed to comply with the Practice Direction. Thus, despite having compassion for them, they should receive little sympathy in those circumstances. He points indeed, to some recent decisions of this Tribunal and in particular to a passage from a Judgment of my own in Martin v. British Railways Board [1989] ICR 24 where I pointed out:
"that parties must learn to act promptly and energetically and not to leave matters until the last few days"
and then I said this:
"it is important that advisers of all kinds, not only lawyers, but those who seek to put themselves forward as advisers or advocates before tribunal and this appeal tribunal, should appreciate that they are expected to know the law and the procedures; it is perhaps only where those acting in person need guidance, that a more lenient approach is justifiable."
Mr Patrick Elias, appearing today for the Borough Council has made a number of points. His general points, which he rightly concedes are of limited weight in the light of the strict approach that we take in this Tribunal, are, first, that there was really no prejudice to the Respondents, who were notified in the middle of December that the appeal was going to take place; secondly that this was the holiday period; and lastly, that the application was made before time had run out. I will return to that point a little later when we look at the Practice Direction. Additionally he makes the point that this is a very important case which, although we do not use the phrase, "the test case", nevertheless, it was one in which both sides anticipated that the result would give some guidance not only to this Borough Council but to other local authorities in connection with provisions for early retirement and redundancy. It was considered to be extremely important by all concerned. Then he takes a point on the Practice Direction and lastly a point which I will return to by way of the amendment to the Reasons.The Practice Direction has been in existence for a long time.

(b) it reads:

"Every notice of appeal not delivered within 42 days of the date on which the document recording the decision or order appealed from was sent to the appellant must be accompanied by an application for an extension of time, setting out the reasons for the delay. (c) Applications for an extension of time for appealing cannot be considered until a notice of appeal has been presented."
Mr Elias points out that in paragraph 3 of that Practice Direction the following appears:
"Where the Rules do not otherwise provide, the following the procedure will be followed in all appeals to the Appeal Tribunal."
and then he takes me to the Employment Appeal Rules 1980, Statutory Instrument 1980 No.2035 and points out that in Rule 30 the following words appear:
"The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended ( whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal."
He submits that the limitation placed upon appellants by paragraph (c) of the Practice Direction is in conflict with the Rules, in that paragraph (c) uses the words "cannot be considered".His comments, as always, are material and helpful. They do point to a problem. However, it is important that those wishing to appeal should understand that a strict practice is being applied and that they must file their Notices of Appeal within those 42 days. Having said that and whilst not wishing to detract in any way from the importance of that wording and indeed, the various authorities which we have from time to time decided in this Court on the strictness of time limits, it may be of some assistance to practitioners if it were to be understood that the importance is that a Notice of Appeal should be filed, even if it is somewhat informal. It must indicate that this is an appeal and not deal merely an intention to appeal, and it must indicate the broad grounds upon which reliance will be placed. I would suggest also, that it indicates that a more detailed and specific Notice, whether by way of amendment or replacement, will be provided within a very few days. I do not suggest that any fixed number of days will be relevant but in an emergency, the important thing is that the letter or other document should itself be sufficient to constitute a Notice of Appeal even though somewhat informal. It is not necessary in order to prevent time running for there to be a lengthy, formal, detailed document. If it is available it is of course desirable, it saves time and cost administratively. The present Direction stands and the present Rules stand. Whilst those comments of mine in this Judgment should not be regarded as a Practice Direction in any sense, it was indicated to me by both those before me this morning that it would be assistance if some guidance were given to practitioners on what could be an area for misunderstanding.Whilst commenting on Notices of Appeal, it should be regarded as common practice and indeed a desirable practice that a Notice of Appeal should be signed by the person accepting responsibility for its drafting.In the present case, looking at the letter of the 30th December sent by Mr Spafford, I am quite satisfied that that was not sufficient of itself to constitute a Notice of Appeal, however informal, nor indeed is it so submitted by Mr Elias. Therefore, in this case, subject to the point which I am now about to deal with, it is unlikely that this interlocutory appeal would succeed. However, perhaps fortunately for the Borough Council, there has been a further development since the beginning of this year.In the letter of the 30th December it was indicated that there had been some errors in the Full Reasons of the Industrial Tribunal and that those were likely to be material. In fact they are highly material, because in the original decision the parties had been wrongly identified. The amendment was made by a document dated 23rd January of this year. That document is after the formal Notice of Appeal, which is dated 8th January 1992, and in this particular case that amendment, which was made under Rule 9 of the Industrial Tribunal (Rules of Procedure) Regulations 1985 meant that certain parties had different rights and remedies from those which were indicated in the original decision. It seems to me that although some corrections under Rule 9(9) (which deals with clerical mistakes) may be of practically no materiality to the substance of the case and to any issue of law, if the correction is relevant to a legal argument and perhaps if it discloses a legal argument which was not disclosed on the original decision, then it would be unfair not to take the date of the amendment or the correction, as the final date from which time should run. In saying this I would not wish to encourage arguments based on this decision where the corrections are really of a very minor nature. However, in the present case I am quite satisfied that the corrections were material and of importance; indeed it would be unfair not to allow the Borough Council to argue the case on the basis of the correction. It might have been argued that if there had been no correction in some ways the decision was a nullity, however, that is a matter for other occasions, for the moment I am satisfied that it would be right that time should run from 8th January 1992.Mr Elias with his usual frankness then points out that the Notice of Appeal has been filed before the start of time running. I would in any event propose to extend time or to allow the original Notice to stand subject to any amendment which may be sought, but that is a matter of technicality.I shall therefore allow this appeal and I could extend the time for filing the Notice of Appeal, alternatively, I could direct that the original Notice stand as the Notice of Appeal. I am inclined to think, subject to any submissions, that it is easier simply to extend the time for appealing in the exceptional circumstances.