Sujeeun v St Johns College [1993] UKEAT 298_92_0202

EAT
Sujeeun v St Johns College
[1993] UKEAT 298_92_0202 · 1993-02-02
MR JUSTICE WOODS (PRESIDENT): This is an appeal by Mrs Sujeeun from a decision of the learned Registrar of this Appeal Tribunal refusing to extend time for the presentation of a Notice of Appeal.Mrs Sujeeun is represented today, as she was represented before the Industrial Tribunal, by her husband Mr Sujeeun. If I may say so he is a very experienced, fluent and concise advocate. He tells me he has had experience in the County Court, the High Court, the Court of Appeal and he is looking forward to the House of Lords; he has also been in front of industrial tribunals, and it may be in front of other bodies. He is extremely conversant with the law and in particular with the European Convention of Human Rights.The decision which I have to reach today is whether or not the learned Registrar acted appropriately in exercising her discretion not to extend time.Mrs Sujeeun issued an Originating Application which was dated the 12th April 1991, in which she claimed against her employers St John's College in Cardiff an over-deduction of National Insurance contributions, maternity pay and wages as per her contract. The matter came before an Industrial Tribunal sitting at Cardiff on the 2nd October 1991, sitting under the Chairmanship of the learned Regional Chairman, Mr David Powell.Her complaints were dismissed as being out of time. It was a unanimous decision, the Tribunal felt that it could not entertain her claims. The question at issue, as Mr Sujeeun has explained to me was whether the Applicant could explain a five month delay. The first basis upon which the delay was sought to be explained is dealt with in paragraph 2 of the decision, and it was in fact contended that the cause of action was not really known to Mrs Sujeeun, through concealment by the school authorities. That matter was investigated by the Industrial Tribunal and ultimately at the end of that paragraph 2 they say:
"There is simply nothing in the applicant's argument: no fact was later discovered which it was necessary to know before drawing and presenting the complaint as can be seen from the statement in part 10."
That, therefore, as a reason for the delay, was rejected.The next point is that the delay was due to negotiations that were going on and therefore it was reasonable not to bring proceedings during the currency of those negotiations. That matter was examined in paragraph 3 of the decision; it was a question therefore of whether it was reasonable for the action which was taken to delay the presentation of proceedings during negotiations. That submission and that contention was once again carefully considered and it was rejected as a basis for the delay. At the end of paragraph 3 the Tribunal say:
"we therefore find it was reasonably practicable to present the application while these negotiations were continuing. In fact the applicant would have been in a stronger position to apply pressure in negotiation if the complaint had been presented in time."
That second contention therefore was also rejected.Finally, Mr Sujeeun took points under the European Convention of Human Rights. The Tribunal referred to Articles 1, 6, 10(1), 13, 14, 17 and 26. They examine the question of time limits and they examine also a number of other aspects of the Articles to which they refer. The points were looked at, examined, and it was decided that there were no grounds on the basis of the Convention for the Applicant's proceedings to succeed. I put it thus, generally, because the matter was dealt with by the Industrial Tribunal, and I can discern no error of law.Having received that decision, it was promulgated on the 5th November 1991, Mr Sujeeun asked for a review on behalf of his wife. He did so in a letter which is dated the 11th November 1991 and followed it up at the request of the Tribunal with a rather more detailed letter setting out his grounds for seeking a review. Those grounds were set out by the learned Chairman in his decision refusing a review. In general terms the headings of those complaints can be put thus:
"(a) Serious errors on the part of `the panel/staff of the tribunal.' (b) Denial of cross-examination of the respondent - viz the headmaster - in person. The respondents chose not to call evidence, and Mr Sujeeun contends that therefore the applicant should have had the benefit of the doubt . . . (c) Error of law, miscarriage and denial of justice (d) Decision reached in the absence of certain documents."
Those complaints are dealt with by the learned Chairman; some he suggests are matters for appeal and I would respectfully agree with him. In other cases he lists out some two dozen, individual complaints made against the Tribunal. He refused a review hearing because he considered that the application had no reasonable prospect of success. In so far as personal complaints are made against him, he has forwarded those personal complaints to the proper quarter.It is clear that the decision to reject the application for review was sent out on the 10th February 1992.The first Notice of Appeal received here was dated 24th April 1992 and it purports to appeal, in fairness to Mr Sujeeun, against both decisions, but whether or not it is against either decision or both it is clearly out of time, and it is out of time by a few weeks. The task faced by the learned Registrar therefore, was to decide in the exercise of her discretion whether to extend the time for presentation of that Notice of Appeal. The time restrictions are strictly applied in this Court, for many good reasons. It is not suggested that Mr Sujeeun had not received the usual documentation indicating that the time limit for an appeal is 42 days.He puts forward, in essence, two grounds for explaining his failure to act in time. The first, which I will consider, although it was the second he put forward, was that there had been a failure on the part of this Court to return certain documents to him which were sent with the Notice of Appeal on the 24th April 1992. I find it difficult to understand, quite how that can explain a delay which took place before that date. The main basis upon which he explains the delay however, is on the grounds of his health. He has placed before the learned Registrar a document from a Consultant Chest Physician, Dr Ian Campbell, who in a report headed "To Whom it may Concern" say that Mr Sujeeun has had:
"A recent acute bronchitic infection which has worsened his wheeze but the infection is responding to [medication] . . . and Ventolin 2 puffs four hourly p.r.n."
He needs his Ventolin, if he is in a smokey atmosphere, that need is increased. There is apparently some damp and fungal growth in the house, which has been classed as unfit for human habitation. Then there are other medical problems, including episodic back ache and post micturition dribble. The reports ends up:
"OPINION: This man is an atopic who has asthma. The damp and mould in his house are highly likely to be aggravating his symptoms and on medical grounds I would support rehousing or prompt remedial works to his house."
I have seen and heard Mr Sujeeun for about one hour and a half, he was most fluent, he hesitated not at all, he showed no shortness of breath and as far as I, as a mere layman, could observe he was in full control of all his capabilities, which were considerable. I have considered its contents but this medical certificate seems to be aimed at the question of housing rather than his ability to have presented a Notice of Appeal within time. I am not satisfied at all that there was no possibility, or indeed, he could not reasonably, have entered a Notice of Appeal within time. It is only, as I have explained, in exceptional circumstances that the time will be extended.Mr Sujeeun has asked me to look at the merits of the case, and in particular, he asked me to apply Articles of the European Convention on Human Rights. It may be that he has some rights, but so far as I am concerned today I seek to apply the time limits and the principles of this Court for the extension of time. They do not, as I understand them, indicate to me that there is any unfairness on the litigant, in this case his wife. It was perfectly possible for the time limitations to have been complied with and in fact it seems difficult to seek quite how the questions of fact which were decided by the Industrial Tribunal could be upset.There is only an appeal to this Tribunal on a point of law, the issues were largely issues of fact and I am not persuaded that there is any clear ground of appeal in law. However, even if there were, this case depends upon the exercise of the discretion to extend time, and bearing in mind the principles which we apply I am afraid I find myself in a position where I can not help Mrs Sujeeun, who is represented by her husband, on this occasion.This appeal is dismissed.