Teaching Driving Ltd v Nickerson [1994] UKEAT 58_94_2305

EAT
Teaching Driving Ltd v Nickerson
[1994] UKEAT 58_94_2305 · 1994-05-23
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Registrar on the 21st March 1994. She refused an application by the Appellants Teaching Driving Limited to extend the time for appealing against a decision of the Industrial Tribunal.The application was opposed by Mr Nickerson, who was the successful Applicant in unfair dismissal proceedings before the Industrial Tribunal. Teaching Driving Limited, were dissatisfied with the decision. I have been asked to decide whether the Registrar's decision refusing an extension should be upheld or reversed.The background to the appeal is that, after a hearing at Leeds on the 23rd July and 4th and 8th October 1993, the Industrial Tribunal unanimously decided, for reasons notified to the parties on the 16th October, that Mr Nickerson had been unfairly dismissed and Teaching Driving Limited were ordered to pay him the sum of £10,000 compensation.Following the notification of the decision a letter was written by the Solicitors acting for Teaching Driving to the Registrar of the Employment Appeal Tribunal, Audit House, 58 Victoria Embankment, London, EC4Y ODS (the address is relevant) asking the Registrar to forward to them an appeal form with information on lodging an appeal after a Tribunal's decision. No appeal was lodged at that time. An application was made by the Solicitors in a letter dated 3rd November 1993 to the Chairman of the Industrial Tribunal for a review of the decision. For reasons notified to the parties on the 7th December 1993 the Chairman refused to grant the review application on the grounds that it had no reasonable prospect of success. The reasons pointed out that the application by Teaching Driving Limited was simply an attempt to persuade the Tribunal that its decision was wrong and if the decision was wrong, as alleged, then the appropriate course was appeal. The reasons dealt with another aspect of the application based upon proposed new evidence. The Chairman did not accept that the proposed new evidence was unavailable for the conclusion of the hearing nor did he accept that its existence could not have been reasonably known or foreseen.What then happened was that the Solicitors for Teaching Driving Limited were instructed to appeal against the decision on the application for review. A Notice of Appeal was dated 14th January 1994, but it was not received at the Employment Appeal Tribunal until the 21st January 1994, that is three days after the expiration of the 42 day period prescribed in the Employment Appeal Tribunal Rules. The 42 day period for appealing may be extended, but it is well established by decisions on applications to extend time that, except in rare and exceptional cases, the tribunal will strictly adhere to the time limits laid down in the Rules. It is necessary to adhere to those time limits in order to ensure certainty and finality in legal proceedings. The Tribunal will only extend the time limit if there is a justifiable excuse. What is the excuse for being out of time in this case? Ms Borejszo, who has appeared for Teaching Driving Limited, puts the following matter before the Tribunal: that the documents were sent to an address in 4, St James' Square, London, and that, she says was given as the address of the Employment Appeal Tribunal in a document dated January 1987, signed by the then President, Mr Justice Popplewell. That document was included in the papers sent to her firm. They were therefore justified in sending the documents, including the Notice of Appeal, to that address. There was, in fact a signature of receipt of those documents dated 17th January 1994. That was within the time that the Rules set for appealing.The case is set out in more detail in the letter sent by Ms Borejszo's firm to the Tribunal on the 17th March 1994. It was pointed out that, in the notes of guidance for prospective appellants sent to them by the Employment Appeal Tribunal, there was the document giving the St James' Square address. They were therefore under the impression that the Employment Appeal Tribunal had two addresses. As long as you sent the documents to one of them it did not matter. The letter enclosed the signature for packages sent by ANC Couriers, who delivered to 4 St James' Square on the date. The document showed that a Mr Bailly has signed for the package. In those circumstances, it is submitted, that there was a justifiable excuse for the appeal being out of time. It was dated and sent in time, received in St James' Square on time, and therefore, it is submitted, there should be an extension in this case.Mr Nickerson opposed the application for leave to extend the time limit. He opposes this appeal. The documents showed that the Solicitors for Teaching Driving Limited had written to the correct address at Audit House in November 1993 and received the Notice of Appeal from this address. When the decision was sent to the Appellant refusing the application for review it was accompanied by a page of notes and that page of notes, in a standard form, states in paragraph 2:
"A party who is dissatisfied with a decision of a chairman or of a tribunal on an application for review may appeal to the Employment Appeal Tribunal on a point of law only. Such an appeal must be made to the Registrar, Employment Appeal Tribunal, Audit House, 58 Victoria Embankment, London EC4Y ODS, within 42 days of the date upon which the decision on the application for review was sent to the parties. It should be noted that the application for review has not extended the time limit for appeal from the original tribunal decision. "
Mr Nickerson's deduction from these facts is that this a time wasting manoeuvre or ploy by the Appellants. He submits that the appeal should be dismissed.I am not in a position to say what the motivation is, or may be, on the part of the Appellants. What is clear is that the Notice of Appeal was not received within the time limit. It was not sent to the correct address. The correct address for sending the Notice of Appeal was known to the Solicitors for Teaching Driving Limited, both from their communications with this Tribunal in November and from the document received from the Industrial Tribunal with the Review Decision in December. In my judgment it is no excuse for the late service of the Notice of Appeal that the Solicitors for the Appellants thought that it was permissible to send the Notice of Appeal either to Audit House or to the previous address in St James' Square. The relevant documents made it clear that an appeal must be brought by notice sent to the current address of the Employment Appeal Tribunal at Audit House.There is no justifiable excuse for the late service of the Notice of Appeal. The Registrar's decision was correct. This appeal will be dismissed.