Rea v Metrogold Ltd [1993] UKEAT 602_93_1012

EAT
Rea v Metrogold Ltd
[1993] UKEAT 602_93_1012 · 1993-12-10
MR JUSTICE MUMMERY (PRESIDENT): On the 26th April 1993 the Industrial Tribunal held at Birmingham unanimously decided to strike out a claim for unfair dismissal made by the Applicant, Mr John Rea, against Metrogold Limited.At the hearing Mr Rea was represented by his Solicitor, Mr Partridge. Metrogold Limited were represented by the Managing Director, Mr Shorters.The finding of the Tribunal was that the contract of service that Mr Rea had with Metrogold was tainted with illegality as it involved a fraud on the revenue. The Tribunal therefore held that it had no jurisdiction to entertain the complaint.The decision of the Tribunal was sent to the parties on the 19th May 1993. Under the rules the latest date for appealing was the 30th June 1993. The Notice of Appeal was received by the Employment Appeal Tribunal one day late, on the 1st July. On the 7th July an application was made on behalf of Mr Rea to extend the time for appealing. Under Rule 30 of the Employment Appeal Tribunal Rules 1980, the time prescribed for doing any act may be extended whether or not it has already expired.The Registrar made an Order on the 24th August 1993 refusing the extension. This is an appeal against that Order, under Rule 17 of the Employment Appeal Tribunal Rules.Mr Partridge again represents Mr Rea. The appeal against the refusal of extension is opposed by Mr Shorters on behalf of Metrogold. In support of his submissions that there should be an extension Mr Partridge referred to two authorities and advanced a number of arguments. His argument in brief is that the Registrar should have extended the time in view of, first, the shortness of the period by which the appeal was out of time; secondly, that the reason for the delay was an honest mistake on his part in calculating the period for the bringing of the appeal; thirdly, his client had submitted an application for Legal Aid which had not been finally disposed of by the end of the period for repealing. He also made a number of points about the merits of the decision of the Tribunal and the manner in which the hearing at the Industrial Tribunal was conducted. His main point on that was that there had not been a proper opportunity allowed by the Tribunal Chairman to his client to make submissions on the point on which the Tribunal ultimately declined jurisdiction. I should mention that on the latter point there is a factual dispute, since Mr Shorter says, and has said so in writing at an earlier stage, that ample opportunity was given to Mr Partridge at the hearing to make submissions. I need not go into that dispute since I have reached the conclusion that this appeal should be dismissed on other grounds. The reasons for the dismissal of the appeal are similar to those general statements of principle laid down by this Tribunal in the two cases referred to by Mr Partridge.The first case is Duke v. Prospect Training Services Limited [1988] ICR 521. In that case Mr Justice Popplewell, in giving the decision of the Tribunal, referred to the proper approach to applications for extension of time as laid down in Practice Directions and earlier decisions of the Tribunal. The proper approach is that:(1) The time limit for appealing must be strictly observed.(2) Extensions of time for appealing will be granted only in rare and exceptional cases.(3) If delay is caused by an application for Legal Aid the Notice of Appeal should be lodged within time. An application can then be made to defer the hearing of the appeal.Cases have also indicated that where there are difficulties in getting a Notice of Appeal in in time, the proper approach is to seek the agreement of the other side to an extension; if that is not granted, to apply to the Tribunal for an extension before the expiration of the 42 day period. The most important question in relation to extensions of time is what was the reason for not giving the Notice of Appeal in time? No good reason has been shown in this case. Miscalculation on the part of the Solicitor as to the time for appealing is not an excuse for failing to appeal in time, nor is the existence of a pending application for Legal Aid nor a pending appeal against a refusal of Legal Aid.I should mention finally that Mr Partridge relied heavily on the decision of this Tribunal in National Graphical Association v. Howard [1983] IRLR 440, one of the rare reported instances of this Tribunal granting an extension of time. He referred to the parts of Mr Justice Browne-Wilkinson's judgment which set out the factors for and against granting an extension. The general discussion is helpful, but the decision is not helpful to Mr Rae's case because the Judge emphasised in paragraph 11 of the Judgment, where he stated that the Tribunal had decided to extend the time for appealing, that his decision was limited to the very special facts of that case. He said:
"At the end of the day we come down in favour of extending the time for appeal in this case. The decisive factor in our decision is that unless time is extended it appears that there is at least a possibility that a judgment will have been obtained on the basis of facts which were misleading. Doing the best we can to balance all these factors in this very unusual case, we think it is appropriate to extend the time for appeal. However, we must make it clear that this decision is not a charter simply to ignore the Industrial Tribunal and seek to come her and re-open the matter. In the ordinary way, a union which has decided not to take part before the Industrial Tribunal will have little chance of having time extended on a later change of mind. Our decision in this case is limited to the very special facts of this case."
There are no special facts in this case. It is a case of an adviser making a mistake in the calculation of the time for appealing.I have heard no good reason as to why it was left right to the end of the 42 day period to send in the Notice of Appeal.For those reasons the appeal is dismissed.