Payne & Ors v Port Of London Authority [1993] UKEAT 40_93_0906

EAT
Payne & Ors v Port Of London Authority
[1993] UKEAT 40_93_0906 · 1993-06-09
MR JUSTICE WOOD (PRESIDENT) On Tuesday 12th January 1993 the proposed Appellants, Port of London Authority (PLA) presented a notice of appeal and a covering letter, each dated Friday 8th January, to this Tribunal appealing against the decision of an Industrial Tribunal sitting in London (North) and promulgated on 30th November 1992. The time-limit for such appeals is 42 days. It was therefore only one day out of time.With that notice of appeal there was included an application for extension of time. By an Order of 5th March 1993 the Deputy Registrar granted that application.Against that Order the proposed Respondents now appeal. Having heard submissions I have dismissed the appeal and now give my reasons.

The background and issues

This is yet another phase in the long drawn out litigation between PLA and a number of shop stewards in London Docks (the Applicants), who are supported by their Trade Union, the Transport & General Workers Union.After a hearing of some 160 days, the Industrial Tribunal found that these Applicants had been unfairly dismissed. The Employment Appeal Tribunal rejected PLA'a appeal. It has not appealed to the Court of Appeal on that issue.By a decision of 17th February 1992, the Industrial Tribunal ordered re-engagements of these Applicants.On 27th February 1992, the Industrial Tribunal found that PLA had failed to establish that it was not reasonably practicable to re-engage these Applicants.These two decisions were set aside by the EAT on appeal and the issues remitted for rehearing before another Industrial Tribunal.Those orders are the subject of appeals to the Court of Appeal.It is agreed that the redundancy payments eliminate the basic awards, but the compensatory and special awards remain to be assessed. It was this that the Industrial Tribunal purported to do by its decision of 30th November 1992 from which PLA now appeal. The basis of the appeal is that until the disposal of the appeals to the Court of Appeal, the orders of 17th February and 27th February 1992 have been set aside by the EAT and there is therefore no basis upon which a compensatory or special award can be based. The Industrial Tribunal had no right to order such awards. This is a point of law.Whether or not that is a sound submission is not for me to decide, but it could not, in my judgment, be considered specious or unarguable. Depending upon the correct date of the making of any order for payment of such awards, the amount of interest payable under the Industrial Tribunals (Interest) Order 1990 (S.I.1990 No.479) will be assessed. I was told that some payments have been made and that this has been the subject of discussion between lawyers at the end of 1992 and during the early days of January 1993.

How the delay occurred

In a long letter of Tuesday 12th January, the contents of which are rightly accepted as genuine, a large London firm who are solicitors to PLA, explained what had happened.In this firm each floor is served by a Floor Manager who is responsible, inter alia, for outward and inward despatch and receipts of all letters, Faxes and other documents generated by or addressed to the staff for whom they are responsible. The despatch office is situated on the ground floor of the building. At approximately 4.30 p.m. on Friday 8th January the secretary to the solicitor responsible, took the notice of appeal and its covering letter and handed it to the Floor Manager. He took the envelope forthwith to the despatch room. The envelope was marked "By courier", and attached to it is an indication of the file number and the solicitor involved.Documents to be sent by courier receive immediate attention and the normal procedure is that the supervisor will telephone the firm normally used for this work. In the ordinary way the document should have been delivered to this Appeal Tribunal within 30 or 40 minutes. There are some 30 to 35 courier deliveries in an average day's work.The time for appeal did not expire until Monday 11th January, and on that date a letter was sent to the Applicants' solicitors enclosing the notice of appeal dated Friday 8th January.At about 10.30 a.m. on Tuesday 12th January the envelope containing the notice of appeal and covering letter was found in the office of the Director of Office Services, the most senior administrator within the firm. He had in fact been absent from his office from Friday 8th January until the morning of the 12th.This was the first indication that the envelope had gone astray and steps were taken for immediate delivery to this Tribunal accompanied by a long letter explaining the matter and seeking an extension of time. Despite intensive investigation it has not been possible to discover how it was that this one document went astray. There is no evidence to suggest any other documentation went astray through the despatch office at that time.

The law

The Practice Direction - EAT (Procedure) - is reported in [1981] ICR 287.

(e) which reads:

"In determining whether to extend the time for appealing, particular attention will be paid to the guidance contain in Marshall v. Harland & Wolff Ltd (Practice Note) [1972] ICR 971, and to whether any excuse for the delay has been shown."
Marshall was a decision of the National Industrial Relations Court given by Sir John Donaldson (President). The Headnote 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; where delay is being caused by an application for legal aid, notice of appeal must nevertheless be lodged within time and application should then be made to defer the hearing of the appeal."
I would only note in passing that the phrase, "only in rare and exceptional circumstances" is not to be found in the judgment of the learned President.At p.99 F - H he says:
"The employers are undoubtedly prejudiced by being faced suddenly with an appeal of this kind. They are not, on the facts of this case, prejudiced in the matter of costs, because the employee has a legal aid certificate with a nil contribution, but that is an entirely adventitious circumstance. In common with every employer they are prejudiced where at the end of the time for appealing there has been no appeal, but at some later date an employee comes forward and asks for an extension of time for appealing. They are prejudiced because claims to redundancy payments are not insured claims which can be passed over to underwriters. They are claims which have to be met out of ordinary revenue account in the same way as wages. No business can be run, unless it is possible within a reasonably short time to rule off the books and say:
"we have met our liabilities in respect of wages etc. There are no further liabilities in respect of wages, redundancy payments or anything of that nature." "
In this paragraph he is dealing with prejudice in the circumstances of that case where delay was of 84 days. His comments may well be relevant to cases of similar long delay. It is however right to point out the fact that a judgment or order which is otherwise final, and which will be re-opened if the application is granted, automatically causes delay. It is inherent in every such application and that aspect should only be considered if the prejudice is over and above the actual re-opening of the order. The prejudice will no doubt increase with the passage of time and consideration will be given to such prejudice over and above that which must inevitably be caused in such application. It is always true that when an appeal is brought an appellant respondent to the appeal will suffer prejudice in not receiving his money. However it must always be remembered that it is open to him or her to proceed in the County Court, and that there is power in the County Court in its discretion, to order the money to be paid into court where it can earn interest.Thereafter the learned President turns to the approach to such application by ordinary courts in an appellate as compared with originating process. Finally, he emphasises that in jurisdictions concerned with industrial relations, the time-table is to be strictly adhered to and that therefore this Appeal Tribunal should and indeed will, take a stricter approach. It will need greater persuasion.The judgment then continues:
"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. The amount of time allowed for appeals of this nature has been very fully discussed with all interested bodies, and it has been decided that it shall be 42 days - and 42 days means 42 days, not 84 days as in this case."Later the learned President deals with the question of applications for legal aid.The learned President is stressing that in ordinary cases extension of time for appeal is much less likely to be granted than in the initial stages of original proceedings. Secondly, he is emphasising that it is of paramount importance in the "special courts" and in particular he refers to those dealing with industrial relations in the context of his judgment that time-table should be strictly adhered to.It seems to me therefore that to give effect to the Practice Direction of Slynn J and to the judgment in Marshall , it is the duty of the Employment Appeal Tribunal in exercising its discretion to follow the analytical practice in the Court of Appeal, but to take a much stricter approach at each stage.The approach of the Court of Appeal to applications for extension of time has recently been considered in Norwich & Peterborough Building Society v. Steed [1991] 1 WLR 449 where at p.454G the learned Master of the Rolls, Lord Donaldson of Lymington, sets out the principles and cites a passage from the judgment of Ackner LJ in Palata Investments Ltd v. Burt & Sinfield Ltd [1985] 1 WLR 942 . Lord Donaldson says:
"... Once the time for appealing has elapsed, the respondent who was successful in the court below is entitled to regard the judgment in his favour as being final. If he is to be deprived of this entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would-be appellant. The classic statement of the elements of this equation is to be found in the judgment of Griffiths LJ in C M Van Stillevoldt B.V. v. E L Carriers Inc [1983] 1 WLR 207, which are set out in The Supreme Court Practice 1991, vol. 1 (1st supplement), note 59/4/4 and are, as McCowan LJ has set them out, namely (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted.
In Palata Investments Ltd v. Burt & Sinfield Ltd [1985] 1 WLR 942, the delay was only three days and it was fully explained. In such circumstances the balancing exercise would be unlikely to come down on the side of refusing an extension of time, but in an extreme case of lack of merit it could do so. That there is always a discretion was emphasised in the judgment of Ackner LJ, where he said, at .947:
"Before us the matter was estimated to last two hours, as indeed it would have done but for the fact that at the outset, having drawn attention to the procedure which used to exist, we expressed the opinion that, in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal will arise. We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case. No doubt in some cases it may be material to have regard to the merits of the appeal; because it may be wrong, and indeed an unkindness to the appellant himself, to extend his time for appealing, after he has allowed the time to elapse, to enable him to pursue a hopeless appeal.
That decision was reconsidered in Rawasdeh v. Lane , (unreported), 19 April 1988; Court of Appeal (Civil Division) Transcript No.327 of 1988, and Glidewell LJ, having quoted that passage from the judgment of Ackner LJ, continued:
"There Ackner LJ was considering a case in which the time which had elapsed was very short; but support (as here) the reverse is the case? The time which has elapsed is lengthy and there is little valid explanation for it. Suppose, also, that the prospective appellant (the tenant) wishes to argue that he has a good chance of success in his appeal. Should the court then go on to consider how great it thinks that chance is; or, should it simply say: `You are very much out of time. You have given so little explanation for the delay that we are not prepared to consider the chances of a successful appeal.'? In my view in such circumstances it is a relevant matter for the court to consider the merits of the appeal. We are not bound to do otherwise by the decision in the Palate Investments Ltd case. We therefore went on to hear argument on the merits, as to which I now turn."
So it will be seen that that case was the other side of the coin to that shown in Palata Investments Ltd v. Burt & Sinfield Ltd [1985] 1 WLR 942. In the Palata case the delay was as short as could be and was wholly excusable. The merits therefore played little part. In Rawasdeh v. Lane the delay was very much longer - it was six weeks in fact - and was not wholly excusable. Much more merit was require to overcome it."I was also referred to Duke v. Prospect Training Services Ltd [1988] ICR 521 . On the facts of that case the delay was only one day, but it was due to pressure of work in the solicitors' office. A letter had been written within the time for appeal giving notice of an intention to appeal and asking for an appropriate form. The solicitors were therefore conscious of the time-limit but failed to file a notice of appeal within that time. Dealing with this matter the learned

judge says at p.525D:

"... The position is that there has to be some certainty otherwise the conduct of litigation before this appeal tribunal cannot be controlled or properly exercised. The principle of 42 days means 42 days, is to be upheld, save in exceptional circumstances. The exceptional circumstances in this case are said to be that Mr Lukatero was saddled with a vast volume of work unexpectedly and unforeseen. That is an explanation for what happened; we do not think it can possibly constitute a proper excuse or be an exceptional circumstance."
I note the emphasis on the word "exceptional" in that passage. It is to be noted that this comes from the Headnote in Marshall but is not a word used by the learned President in that case. He has stressed paramount importance of adhering to time-tables but does not deal with the reasons upon which an extension could properly be made.Upon the principles enunciated in Norwich & Peterborough Building Society (supra) , but applied with a strict approach, I find that the delay in the present case is short; that the reasons given for the delay are acceptable, it was not a case of slackness, ignorance or the taking of a deliberate risk. The parties were in communication in connection with interim payments which were made. I do not accept that the Applicants/Respondents are prejudiced other than by that which inevitably follows the granting of an extension. If it is necessary to go so far as to examine the merits, it seems to me that there is an arguable case.Having considered all the circumstances including the whole history of this case, I dismiss the appeal. These are my reasons for so doing.