Soffer v London Borough Of Brent [1994] UKEAT 684_94_1509

EAT
Soffer v London Borough Of Brent
[1994] UKEAT 684_94_1509 · 1994-09-15
MR JUSTICE FRENCH : On 1 July 1994 the Appellant's solicitors submitted in writing to the Industrial Tribunal sitting at London North a paper application for leave to amend the Appellant's Form IT1 to add claims under the Sex Discrimination Act 1975 and the Race Relations Act 1976. The original form IT1 had alleged unfair dismissal taking effect on 4 March 1993 and nothing else and was dated 12 March 1993. Thus the paper application to amend was advanced some 15 months or so after the dismissal took effect. Hence any amendment would take place long after the period laid down by the two Acts for bringing such claims had elapsed.The Chairman before whom the paper application came gave her decision in the following terms:
"Your letter of 1 July 1994 has been referred to a Chairman of the Tribunal who has refused your application to amend the Applicants Originating Application. She had asked me to inform you that this is a new application under different statutes and therefore the Applicant must file new IT(1)s with particulars of claim. The case can then be considered although it is outside the time limits."
The Applicant appeals against that decision on the following grounds. First the Chairman did not know she had a discretion to consider an application which is out of time if it were just and equitable to do so. Secondly if she did exercise her discretion she did so wrongly and erred in law in so exercising it. Thirdly the reasons given were inadequate.We regard the first ground as not only unflattering to the Chairman but as plainly absurd. The closing sentence of the decision letter carries the clear implication that there is such a discretion and that she was aware of it. As to the second ground she was not exercising her discretion - she had not been asked to do so. She was, by the decision letter, inviting new applications and doing so, by clear inference, so that the Tribunal could consider the exercise of discretion. As to the third submission the reasons were sufficient in our judgment in all the circumstances.The appeal must be dismissed. The Applicant's solicitors must, we assume, have known of the time limit problem which faced the Appellant when trying to add the new claims. If the course they took was not a device to try and avoid those problems it looks very like it. It is still open to the Applicant to bring a fresh application and then seek the Court's discretion to extend time. We would further observe, though it forms no part of our reasons, that having regard to the extent to which the factual basis of the proposed amendments differs from those in the original application and from those hitherto advanced by three Applicants dismissed at the same time as was this Appellant, might of itself reasonably found a ground for refusing the proposed amendment.Accordingly this appeal is dismissed.