Simmans v ACME Seals Ltd [1993] UKEAT 383_93_1712

EAT
Simmans v ACME Seals Ltd
[1993] UKEAT 383_93_1712 · 1993-12-17
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against an Order made by the Registrar on the 6th September 1993. In that Order the Registrar dealt with an application by Mr Simmans, the Applicant before the Industrial Tribunal, for an extension of time to enter a Notice of Appeal. The application for extension was refused.The appeal came before the Tribunal a week ago. Mr Simmans appeared "in person" and explained his grounds of appeal and how he had recently instructed a new firm of solicitors to act for him on the appeal in place of a previous firm, Douglas Wiseman & Company. The latter had been closed down by the Law Society and were responsible for the late service of his appeal. Mr Murrison, a Director of the Respondent, Acme Seals Limited, also attended. I ordered that the appeal should be adjourned for a week, so that Mr Simmans could obtain representation on the appeal. He had an application pending for legal aid for the matter to be dealt with by the new firm of solicitors. During the last week legal aid has been granted for this appeal. Mr Graham has been instructed to present Mr Simmans' case.The background to the appeal is that Mr Simmans was formerly employed first as a general packer, and later a machine operator, by Acme Seals Limited. He worked from the 23rd January 1990 until the 10th April 1992. He made an application to the Industrial Tribunal on the 29th April 1992 that he had been unfairly dismissed. The case was contested. It was heard by the Industrial Tribunal held at London (North) on the 4th February 1993, Full Reasons were notified to the parties on 19th February 1993. Mr Simmans' application was dismissed.Although Mr Simmans had consulted a firm of solicitors, Douglas Wiseman & Company, before the hearing at the Industrial Tribunal, he in fact acted "in person" on the hearing.After the hearing Mr Simmans sought a Review of the Tribunal's decision. He made that application by letters of the 8th and 22nd February. By letter of 4th March 1993, Mr Simmans was informed that his application under Rule 10 of the Industrial Tribunals (Rules of Procedure) Regulations 1985 for a Review, was refused on the ground that it had no reasonable prospect of success. The grounds which Mr Simmans advanced for a Review related to procedural matters in connection with the hearing, and in particular, an interlocutory hearing on the 12th January 1993. It is not necessary to go into the details of these matters. They are points Mr Simmans also wishes to raise on this appeal. In broad terms they relate to the absence of a Mr Soor to give evidence at the Industrial Tribunal and the failure of Acme Seals Limited to provide certain documents which Mr Simmans considers relevant to his claim. He regards Mr Soor as someone who would have been an important witness. Had he attended, his evidence might have led the Tribunal to come to a different decision.Mr Simmans instructed Douglas Wiseman & Company in relation to an appeal. The solicitors applied for legal aid for the appeal on the 26th March, that is, before the time expired for appealing under the Rules. Under the Rules of the Employment Appeal Tribunal 1980, Rule 3:
"(1A) 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"
The time for appealing expired on the 2nd April. No notice of appeal had been given by then. On the 20th April legal aid was granted. Just over a week later, on the 29th April, the Notice of Appeal was received at the offices of the Employment Appeal Tribunal, together with a covering letter from the solicitors, Douglas Wiseman & Co. seeking an extension of time. The covering letter said:
"We enclose herewith our client's Notice of Appeal together with the Industrial Tribunal's decision. Please also find enclosed our client's Legal Aid Certificate for filing. We apologise for the same being filed late, unfortunately there have been staff changes which caused the delay. In addition, we have only recently received the Legal Aid to lodge the Appeal.

We look forward to hearing from you in due course."

The Notice of Appeal consisted of a typed document setting out complaints in relation to the interlocutory hearing and related matters. There was also a handwritten Notice of Appeal in Mr Simmans' writing repeating similar complaints in relation to witnesses and the failure of Acme Seals Limited to provide him with evidence to help his case. He made particular reference to minutes of certain meetings.The Notice of Appeal was 27 days out of time. On the 26th July Douglas Wiseman & Company were intervened by the Law Society. This was very unfortunate from Mr Simmans' point of view.The question for decision is whether the Registrar was wrong in her decision to refuse an extension of time. The Registrar has power to extend time prescribed by the Rules under Employment Appeal Tribunal Rule 30. Time can be extended, even though the time for doing the act has already expired. It is well established that there must be strict adherence to the Rules which prescribe the time for appealing. Extensions of time, even for period as short as one day, are refused unless there are good reasons for the delay. The Tribunal requires not just an explanation of why the Notice of Appeal was given out of time but also the demonstration of a good reason why the delay has occurred. Cases have established that a pending application for Legal Aid is not a good reason for failing to put in a Notice of Appeal on time Staff changes within the firms of legal advisers and the incompetence of legal advisers, are not regarded as good reasons for delay.In this case Mr Graham has made, every point that could be made in support of the application. He has explained the grounds of the appeal. He has demonstrated that when Mr Simmans was dealing with matters himself, he did act promptly; for example, in relation to his applications for Review; that the reason for delay in this case was the incompetence of the solicitors, due to their staff changes, and perhaps other matters. He made a minor criticism of the Respondents in relation to their lateness with the initial Notice of Appearance to the proceedings.On behalf of Acme Seals, Mr Murrison, a Director, has appeared. He explained why the Notice of Appearance is late. He has given explanations in relation to the non-attendance of Mr Soor at the hearing of the Industrial Tribunal and of the fact that documents requested by Mr Simmans have not been supplied. The answer in the case of some of the documents is that they do not exist.It is not appropriate, however, to go into those matters of dispute. The sole question is whether the appeal against the Registrar's decision should be allowed. I have come to the conclusion that on the basis of the well established principles for extending time, this appeal must be dismissed. It is unfortunate that the solicitors Mr Simmans had to act for him failed to do what they should have done in time. In respect of their failure to act he may have a claim against them for any loss that he has suffered or against the Law Society Compensation Fund. Those are not matters for me to adjudicate upon. The sole question is whether an extension should have been granted by the Registrar. It should not have been, because no good reason recognised by this Tribunal has been established for granting an extension of time. The appeal is dismissed.