Smith v Legal & General Assurance Society Ltd [1992] UKEAT 526_91_2702

EAT

Smith v Legal & General Assurance Society Ltd

[1992] UKEAT 526_91_2702 · 1992-02-27

MR JUSTICE WOOD (PRESIDENT): This is an appeal by the Applicant, Mr Carlton Samuel Smith against the Order of the learned Deputy Registrar of this Court in Chambers, of the 4th December 1991 refusing an extension of time within which to appeal.

The Order which it is sought to appeal resulted from a hearing in an Industrial Tribunal on the 3rd June 1991. The Order was promulgated on the 5th June 1991 and it is clear that the Notice of Appeal, which was dated 19th September 1991, was out of time.

The Decision of the 3rd June, promulgated on the 5th, related to two cases which were then in existence before the Industrial Tribunal. The first case, in time, was number 5874/90/LS/B and that was a case in which Mr Smith alleged racial discrimination against his employers, Legal & General Assurance Society Limited. The second was numbered 6350/91/LS/B and that was an allegation of victimisation. The victimisation was alleged to have arisen by his dismissal on the 14th December 1990, which was during an adjournment of the hearing of the discrimination case.

In the discrimination case Mr Smith had instructed the Brixton Community Law Centre, who themselves had instructed a Mr Owusu as Counsel. The hearing had taken place on the 12th, 13th, 14th and 15th of November 1990 and had then been adjourned. Mr Smith was not well. During the adjournment there had been an application made on the 4th February 1991 that the Tribunal disqualify itself. That was based on certain matters raised during discussions or submissions between Counsel on both sides and the Tribunal as to the way in which the future hearing should be conducted, and indeed it was ultimately conducted during the 10th, 11th, 12th, 13th, 17th and 18th June 1991, in the absence of Mr Smith and with certain written questions being put and answered. The ultimate Decision was given on the 26th June 1991, and on that occasion the Tribunal dismissed the case of racial discrimination. That Decision was promulgated on the 26th June.

Mr Smith had failed to obtain the support of a Commission for Racial Equality for his case of discrimination, but he applied for and did receive, and does receive, the support of the CRE for his case of victimisation.

By a letter of the 29th May 1991, Mr Smith notified the Industrial Tribunal that the CRE was now legally representing him in all matters pertaining to the above mentioned case, that is the victimisation case, and he says in that letter:

"I would ask respectfully if you would be good enough to please forward any correspondence relating to this matter to the commission directly, undoubtedly the commission will be contacting you shortly to this effect.

Thanking you in anticipation

Yours sincerely

Carlton S Smith"

The CRE instructed Mr Whitmore's present Solicitors who placed themselves on the record on the 21st June 1991.

Certain papers in connection with the victimisation case were sent to Brixton Community Law Centre, and they informed Mrs Smith, the Applicant's wife, who wrote a letter on the 10th May 1991 to the Industrial Tribunal saying that she had not received the documentation. The documents were sent to Mrs Smith, together with a post card of the 22nd May apologising and those papers were received by her on the 25th May.

Both cases were before the Industrial Tribunal, as we have already indicated, for the hearing of the 3rd June. On that occasion there was an application by the employers, the Legal & General, that the two cases should be heard together. The phrase used is "consolidated" but I think the truth of the matter is that they will be heard together. Mr Owuso, instructed by the Brixton Law Centre, attended and opposed that Order; he was successful. The Tribunal refused to Order that the cases should be heard at the same time. There was no attendance in the victimisation case but Mrs Smith was there, so she clearly must have known about it, and Mr Owusu argued the issue on that hearing in connection with both cases. Thus Mr Smith was in fact represented, his wife was there, and Mr Owusu was there to make submissions.

The Tribunal gave a written Decision in both cases having given an oral indication of the result. Those Decisions stretch over some two pages or more, so that the matter was carefully considered. The basis upon which the argument proceeded after the decision that the cases were not to be heard together, was that following the completion of the discrimination case the victimisation case should not be heard by the same tribunal. The question of disqualification had already been argued on the 4th February 1991; however, the issue was re-examined, as I understand the Reasons, and the decision was made that the case should be heard by the same Tribunal after the hearing of the discrimination case. The basis was that there was a good deal of evidence which was common to the two of them.

So the position at that hearing of the 3rd June was that the decision of the Tribunal was known to Mrs Smith; was known to Mr Owusu; and was known to the Brixton Law Centre. It is too much to imagine that the decision was not also, that night, known to Mr Smith, if he was fit enough to understand what was said to him.

On the following day, the 4th June, Messrs Lawrence Graham, who were acting as Solicitors for the Legal & General and who had instructed Mr John Bowers, wrote to the CRE and told them exactly what had happened so that by the date of receipt of that letter the CRE also knew the situation. Mr Whitmore's present instructing Solicitors, as I have already mentioned, were not on the record until the 21st June and in an affidavit it is sworn that the letter of the 4th June was not sent to those Solicitors. Both Solicitors wrote subsequently at the end of August asking for information about the decision, and of course when they received the written Decision, it was at a point of time well within the necessary period for the Notice of Appeal. So one of the issues here is whether the Notice of Appeal was in fact out of time. In order to decide that one needs to look at the Employment Appeal Tribunal Rules, which are Statutory Instrument 1980, number 2035 and at Rule 3(1A), this particular sub-rule was added by the Amendment Rules of 1985, that sub-rule reads:

"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which full written reasons for the decision or order of the industrial tribunal were sent to the appellant, or, in the case of an appeal from a decision of the Certification Officer, 42 days from the date which the written record of that decision was so sent."

Here, one is looking to see whether the Decision of the Industrial Tribunal promulgated on the 5th June 1991 was sent to the Appellant.

Under the Industrial Tribunal Rules Rule 9(6) there is a provision:

"The clerk to the tribunal shall transmit any document ................... and shall send a copy of the entry to each of the parties and to the persons entitled to appear who did so appear...."

Under Rule 17(3):

"All notices and documents required or authorised by these Rules to be sent or given to any person hereinafter mentioned may be sent by post ... or delivered to or at -

. ...........................

(d)in the case of a notice or document directed to a party:- (i)his address for service specified in the originating application or in a notice of appearance or in a notice under paragraph (4) of this Rule; or

(ii)if no address for service has been so specified, his last known address ....."

It is said here, that probably, and it is accepted by Mr Whitmore, quite properly, that the Decision was sent to the Brixton Community Law Centre, but that it was not sent to the CRE nor was it sent to Mr Smith personally, and of course his own Solicitors, Mr Whitmore's present Solicitors were not then on the record. It is said, therefore, that there was no proper service and that time did not begin to run until a relevant date later, which is well within the period of 42 days.

The position in my judgment is this. One needs to look at the Rule of this Tribunal and the practice has been, and if there is any doubt about it let it be perfectly clear for the future, that the date upon which time runs for an appeal to this Court is the date upon which the Decision is promulgated, provided that it was in fact sent to the appellant or to those representing him. In this particular case the point is taken, that although he was represented in the one case and the Decision was sent to his Solicitors in that case, he was not represented in the other case only his wife was there, and although Mr Owusu was allowed to argue the matter in connection with the victimisation nevertheless he was not, nor were his instructing Solicitors, the Brixton Law Centre, on the record. In my judgment, it is quite clear that the true purpose of the service of the documentation, the written Decision, is so as to inform those who are acting and the appellant himself of the decision, and of course with the decision is sent the IT9 which is a document making it perfectly clear that there are 42 days for appeal. If there is any complaint here, it seems to me that the complaint is against the Brixton Law Centre. I am not saying he has grounds but if he has any complaint it must be to them or to the CRE itself who were notified by that letter of the 4th June but did not act upon it. If they did not send that letter to Mr Whitmore's present instructing Solicitors that is not something which stops time from running.

It follows therefore, that this Appeal must be dismissed. The learned Registrar exercised discretion perfectly properly. Mr Whitmore has argued this case carefully, and I am grateful to him. It emphasises yet again that both the Rules of the Industrial Tribunals and of this Court need careful reconsideration because it should be impossible for a situation like this to arise and some process or procedure should be available to obviate these problems.