Read v VNU Business Publications [1992] UKEAT 452_92_2707

EAT
Read v VNU Business Publications
[1992] UKEAT 452_92_2707 · 1992-07-27
MR JUSTICE HUTCHISON: There is before this Court an application for an extension of time to appeal in an interlocutory matter relating to discovery. The would-be appellant being Mr Read, the applicant before an Industrial Tribunal. He sought in the course of the interlocutory stages of his claim to obtain discovery of certain categories of documents which he listed in a long and articulate letter dated 30 April 1992. Among those documents were those to which this appeal relates, categories 11 & 12. Discovery of those documents was refused by the tribunal on 3 June 1992, as not being necessary to dispose of the issues between the parties.Mr Read sought to bring his appeal on 21 July 1992. In fact, the time for appeal is 42 days as appears from the provisions of the rules and an application has been made by Mr Read for an extension of time. That is opposed by Mr Killalea, on behalf of the respondents, who has helpfully referred us to some of the relevant authorities. He directed our attention first of all to a passage in Part X of Harvey 328 which deals in summary form with the requirements of time for appeal and the considerations which the Court should have regard to and it is there suggested that relevant authority is Marshall v Harland and Wolff Ltd [1972] ICR 97.We have been invited to consider that case and the judgment of Sir John Donaldson. The case is reported as a Practice Note and the relevant passage in the judgment is to be found at page 99 where one finds these words:
" Furthermore, the principle which has been adopted by the ordinary courts (as opposed to special courts, of which this is one) has long been that whilst they will, in appropriate circumstances, extend the time for beginning original proceedings, they are much less willing to do so in the case of an appeal. This is only common sense. The potential appellant has had his trial, he has had one chance of obtaining a favourable decision from an impartial tribunal. There is, therefore, much less reason for giving him a second chance than if he had never had a trial at all.
Those reasons would, in the ordinary course of events-and would hereafter, if a similar case came before this court-undoubtedly lead this court to refuse an extension of time for appealing. It is of paramount importance, in dealing with industrial relations, that time-tables should be strictly adhered to."That is the passage relied on by Mr Killalea, he has not referred us to anything in the judgment which in terms supports the rather more stringent language of the headnote which reads:
"The time limit of 42 days for appealing from industrial tribunals to the Industrial Court must be strictly observed, and extensions of time for appealing will be granted only in rare and exceptional circumstances;"
It is the passage in the judgment which we take as laying down the appropriate principle.We were also referred by Mr Killalea, who was concerned to place before us what he thought so far as his own researches had established was the most favourable statement that could be found in favour of Mr Read, to the case of Martin v British Railways Board [1989] ICR 24, where in the course of his judgment the President, Mr

Justice Wood, had to say this on page 32:

"It is perhaps worthy of comment that an appeal from the High Court to the Court of Appeal is now limited to four week, and the period of six weeks allowed by the Employment Appeal Tribunal Rules is indeed generous. Parties must learn to act promptly and energetically and not to leave matters until the last few days. Time and time again cases are coming before us both on time limits before tribunals and on time limits before time limits before tribunals and on time limits before this appeal tribunal. It is important that advisers of all kinds, not only lawyers, but those who seek to put themselves forward as advisers or advocates before tribunals and this appeal tribunal, should appreciate that they are expected to know the law and the procedure; it is perhaps only where those acting in person need guidance, that a more lenient approach is justifiable."
Mr Read is somebody who, as the documents before us show, is plainly aware of his rights: he is an educated and articulate man; he plainly knows a good deal about this branch of the law. Moreover he is not somebody who is without the advantage of some legal assistance - because without going into details Mr Killalea has referred us to documents in the bundle before us which plainly establish that in June and July, Mr Read had access to and a degree of help from a solicitor whose advice he could have sought.Mr Read puts forward these grounds: first, he says that he did not know of the time limit. Given the correspondence and what we have read it seems to us that he has little excuse for not informing himself of it. He relies strongly on the fact that the industrial tribunal did not tell him of the time limit. That does not really in our judgement assist his case. The tribunal's function is not to inform those who appear before it of time limits for appeals and that excuse is not a good one.Then Mr Read points to the fact that he did make an application to the tribunal for a review of the decision: he did that on 15 June and on 30 June he received a response from Assistant Secretary of the Tribunals to the effect that there is no power to reconsider an interlocutory order. The suggestion that Mr Read makes in drawing our attention to those matters is that although he was under a misapprehension about the power to review this interlocutory order, he can be excused for not having done anything in the way of an appeal until he knew of that misapprehension, which he did on 30 June.In response to that argument Counsel for the respondents points out that it was not until some 3 weeks later that he actually launched his appeal and accordingly he was undoubtedly dilatory even after he got to know of that matter. Again, Mr Read draws our attention to a somewhat curious feature of the case which is that in a letter appearing at page 16 of the bundle, solicitors on behalf of the respondents on 5 June 1992, i.e. two days after the interlocutory decision in their favour, but we are inclined to infer before they got to know about it - we may be wrong about that - wrote indicating that there was in principle no objection to giving discovery of the two categories of documents with which this appeal is primarily concerned and he asks us to take that into account.The first thing to be said is that that is 5 June and the second thing is that Mr Read very frankly acknowledged that he could not suggest that it was because of that letter that he had delayed in pressing forward with the appeal process. Therefore, without approaching this case in any over-strict manner but reminding ourselves that the time limits are there to be obeyed; that we are dealing with somebody who is educated and articulate - the case might well be otherwise if we were dealing with an application for an extension by a litigant who did not have the education and the ability of Mr Read (and that is sometimes the case in this Court) -bearing that in mind we ask ourselves whether any good ground has been shown for the appeal being out of time: any good reason why we should extend time. Regrettably, from Mr Read's point of view when we pose that question to ourselves the answer at which we arrive is that no good ground has been shown for the matter being out of time and accordingly no good ground exists for extending time. We, therefore, refuse the extension.MR JUSTICE HUTCHISON: This is an appeal by Mr Read in relation to the refusal of discovery by the Industrial Tribunal in a case where he asserts unfair dismissal by his employers VNU Business Publications on 18 November 1991. On 9 July 1992, he sought from the tribunal an order for discovery of the medical record of Sarah Underwood asserting in the letter in which he made the application that she had for the past three months been receiving treatment in a hospital for a psychiatric disorder.Miss Underwood had been his immediate superior I think - certainly a superior - and he plainly contends that she was involved in the events and judgements which led, as he asserts, unfair dismissal. The dates are, however, material. His information is that she has been receiving treatment in April to June 1992, but he alleges dismissal in the middle of November 1991 and his application for unfair dismissal was dated 10 January 1992. Therefore, the events which are germane to the application are those which occurred before 18 November, some six months prior to the time when he says she was receiving treatment.The tribunal refused on the simple ground that they had no power to order production of a document in the possession or under the control of a third party. It is right to point out that in his form IT1 Mr Read had originally named not only VNU Publications but also three individuals of whom Miss Underwood was one. VNU, in our judgement, rightly point out in their response that they are the only proper respondents to his application. We would uphold the decision of the Industrial Tribunal on the ground they gave namely, that in no proper sense is Miss Underwood a party and the power to order discovery is a power exercisable against parties not against third parties.In those circumstances this appeal falls to be dismissed. We would add, however, as we made clear in the course of the hearing that that problem apart we would have required a lot of persuading that there was any basis for saying that any such medical reports were relevant to the issues having regard to what we have said about the dates. This appeal must be dismissed.