Lenihan v Post Office [1994] UKEAT 728_93_1401

EAT
Lenihan v Post Office
[1994] UKEAT 728_93_1401 · 1994-01-14
MR JUSTICE MUMMERY : This is an appeal against the refusal of the Registrar to extend time for presenting an appeal by Mr Lenihan against the decision of the Industrial Tribunal sitting at London (South) on 13 January 1993.On 23 September the Registrar dealt with an application by Mr Lenihan to extend the time in which to lodge an appeal. That application was refused. On 15 October Mr Lenihan gave notice of appeal to the Judge against that decision. Prima facie Mr Lenihan was out of time for his appeal against the decision of the Industrial Tribunal dismissing his claim for unfair dismissal. According to the decision document itself it was sent to the parties on 21 May 1993. Mr Lenihan did not send his Notice of Appeal against that decision to this Tribunal until 2 August 1993. It was received in the Appeal Tribunal on 4 August. Mr Lenihan was notified by letter of 6 August that his Notice of Appeal was out of time and that, if he wished to proceed with it, he would have to make a formal application for extension of time to appeal, setting out reasons for the delay.He gave notice of that intention on 14 August, stating that the reason for the delay was that he had not received any written notice of the decision and that, despite several attempts, including recorded delivery letters and threats of legal action to the Industrial Tribunal, he had not received the Chairman's Full Written Reasons until Monday 28 June. That had occurred following a telephone call made to the Tribunal on his behalf by Mr Stringer on 24 June. He enclosed photo copies of relevant correspondence with the Industrial Tribunal and submitted to the Registrar that it would be very harsh indeed not to allow his appeal to be heard on the grounds that it was out of time.The Registrar gave her decision on those materials. She did not have the benefit that I have had of full legal argument presented to me very ably by Mr Hansen from the Free Representation Unit, with a well structured and lucid Skeleton Argument.Out of these facts two questions arise for decision on this appeal. The first is whether I should allow the appeal against the refusal of the Registrar to extend the time for appealing against the decision of the Industrial Tribunal. The second point is whether I should entertain this appeal at all as it was 20 days out of time. The rules allow 5 days in which to appeal to the Judge against the decision of the Registrar.I will deal first with the substance of the Registrar's decision. Although the Originating Application is not before the Tribunal (there is no copy of it in the Tribunal's file) it appears to be common ground between Mr Hansen, who appeared for Mr Lenihan, and Mr Zuke, who appeared for the Post Office, that the Originating Application notified to the Industrial Tribunal the name of a union representative, a Mr Leggett, who would be acting for Mr Lenihan in his application. The importance of that is that under Rule 17 of the Industrial Tribunals (Rules of Procedure) Regulations 1985, it is provided in Regulation 17(3):
"All notices and documents required or authorised by these Rules to be sent or given to any person hereinafter mentioned may be sent by post... or delivered to or at - (a)... (b)... (c)... (d) in the case of a notice or document directed to a party:- (i) his address for service specified in the originating application [and then there are other provisions which are not relevant and Rule 17(3) concludes
and if sent or given to the authorised representative of a party such notice or document shall be deemed to have been sent or given to that party."Rule 17(4) provides:
"A party may at any time by notice to the Secretary of the Tribunals and to the other party or parties (and, where appropriate to the appropriate conciliation officer) change his address for service under these Rules."
I should also refer to Rule 9(6) of the Industrial Tribunals (Rules of Procedure) Regulations which provides:
"The clerk to the tribunal shall transmit any document referred to in paragraphs (2), (4) and (5) of this Rule to the Secretary of the Tribunals who shall as soon as may be enter it in the Registrar and shall send a copy of the entry to each of the parties and to the persons entitled to appear who did so appear and, where the originating application was sent to a tribunal by a court, to that court."
The documents referred to include in paragraph (2) that the decision of a Tribunal, which may be given orally at the end of the hearing or reserved, shall be recorded in a document signed by the Chairman and in paragraph (4) the reasons for the decision of the Tribunal shall be recorded in a document signed by the Chairman, which shall also contain a statement as to whether the reasons are in full or in summary form.It is necessary to refer to those Rules because a letter has been produced by Mr Zuke written from the office of the Regional Office of the Industrial Tribunal at London (South). That letter confirms that, on close inspection of the file, a copy of the Decision of the Industrial Tribunal was sent to the Applicant's representative (that is Mr Leggett), due to the fact that the Industrial Tribunal's office had not received any notification stating otherwise.The position therefore taken by Mr Zuke is that the Notice of Appeal from the decision of the Industrial Tribunal was substantially out of time because time started to run from 21 May, the date on which the Decision was sent to Mr Leggett and the sending of the document to Mr Leggett is by virtue of Rule 17 a deemed sending of the Decision to Mr Lenihan and Mr Zuke says `there is no evidence that Mr Lenihan gave notice to the Secretary of the Tribunals changing the address for service'.I am unable to accept that that argument defeats Mr Lenihan's application for an extension of time. I have reached the conclusion that the Registrar was wrong in refusing to extend time. My reasons are these. It is true, as a general rule, that time limits for appeals to this Tribunal must be strictly observed. The Tribunal only extends time in rare or exceptional cases where a good reason is shown as to why the Notice of Appeal was not presented within the time laid down by the Rules. It is often very difficult to show that there is a good reason for failing to observe the 42 day limit. Nevertheless, the Tribunal has power under Rule 30 of the Employment Appeal Tribunals Rules to extend the time prescribed by the Rules, even where that time has already expired. The Tribunal will do so in cases where it is just and it is just to do so and where a good reason is shown as to why the Notice of Appeal was not given within the time limit.In this case a good reason has been shown. The documents reveal that, at the hearing before the Industrial Tribunal on 13 January, Mr Lenihan did not appear by his representative, Mr Leggett. He appeared In Person. That fact is recorded on the front page of the Statement of Reasons given by the Tribunal for its decision. That is only the beginning of the story. There is also correspondence which Mr Lenihan had written from his home address in Fulham with the Industrial Tribunal at London (South). The correspondence shows that it was clear that Mr Lenihan was asking for the Full Reasons for the decision to be sent to him personally. He wrote on 12 March to the Assistant Secretary at the London (South) office saying:"...I should be grateful, nevertheless, if you would arrange for the "full written reasons" to be sent to me".He wrote again on 23 April. I do not place a great deal of reliance on that letter since Mr Zuke has informed me that according to enquiries made by him, this letter does not appear to have been received by the Industrial Tribunal Office at London (South). According to Mr Lenihan he sent such a letter repeating his request for Full Written Reasons as a matter or urgency.The Industrial Tribunal did receive the next letter dated 24 May, that is 3 days after the decision of the Industrial Tribunal had been notified to Mr Leggett. He referred to his 2 previous letters of 12 March and 23 April, the last of which was stated to have been sent by recorded delivery - saying:"You have not responded to either of these two letters or acknowledged receipt of them and have not contacted me since your letter of 8.3.1933. In that letter you stated that a transcript of the Hearing had not been taken, but that I was entitled to a copy of "the full written reasons". You stated further that, with regard to the change of venue, Mr. Leggett (the union representative acting for me) had been informed. Please find enclosed a copy of a statement Mr. Leggett has made denying receipt of any information regarding a change of venue.In my letter of 12.3.1993. I asked if the "full written reasons" could be sent to me. My letter of 23.4.1993. emphasised that I had not received the "full written reasons" and that, as I propose to continue action against the Post Office, I should be obliged if they could be sent to me urgently.It is now over four (4) weeks since the previous recorded delivery letter and over ten (10) weeks since my first letter making this request. I do feel that this is not a satisfactory level of response on your behalf, especially when what is being requested is a simple matter to arrange.Unless I do receive the "full written reasons" within twenty-eight (28) days of receipt of this letter, I shall be obliged to apply to the Courts for a writ to subpoena the documents in question. I do not wish to take this course of action, but if forced, I will do so.

I look forward to hearing from you in the near future."

It is clear from those letters, that despite the references to the union representative, Mr Leggett, in relation to the different matter, namely notification of the change of venue, Mr Lenihan requested that a Full Written Statement of Reasons should be sent to him personally. That was not done on 21 May. In fact the decision was not sent to him personally until 25 June. He received the decision document on 28 June.The significance of the dates is this: that if time runs, as the Post Office contends it does, from 21 May, the time limit expired on 2 July and Mr Lenihan was well out of time when he sent in his Notice of Appeal to this Tribunal on 2 August. However, if time does not run against Mr Lenihan until 25 June, when the Industrial Tribunal sent to him personally for the first time a copy of the Decision, that 42 day time limit does not expire until 6 August which is after the date on which he actually sent in his Notice of Appeal and it was received by the Registrar.In my view, Mr Lenihan made it clear at the hearing that he was acting `in person'. He made it clear in subsequent correspondence that he wished a full statement of the Tribunal's reasons for the decision against him to be sent to him personally.In those circumstances it is only right that time should not run against him until he had been sent those reasons, personally. Time did not start to run against him until 25 June. He therefore submitted his Notice of Appeal within 42 days of that date. He did not need an extension of time. The Rules require that the 42 days runs from the date on which the Full Written Reasons for the decision or Order of the Industrial Tribunal were sent to the Appellant. They were not sent to him until 25 June.However, even if 21 May were regarded as the date on which the Reasons were sent to him, I would reverse the Registrar's decision and extend the time for appealing to enable his Notice of Appeal to be pursued.I will deal more briefly with the second point that Mr Lenihan is out of time for appealing against the decision of the Registrar which I have found to be erroneous, not through any fault of the Registrar but as a result of fuller argument heard before me than was presented to the Registrar.The Employment Appeal Tribunal Rules provide at 16(1) and (2):
"Every interlocutory application made to the Appeal Tribunal shall be considered in the first place by the Registrar who will have regard to the just and economical disposal of the application and to the expense which may be incurred by the parties in attending an oral hearing.
Every interlocutory application shall be disposed of by the Registrar except that any matter which he thinks should properly be decided by the President or a judge shall be referred by him to the President or a judge, who may dispose of it himself or refer it in whole or in part to the Appeal Tribunal..."Rule 17(1) and(2) provides:
"Where an application is disposed of by the Registrar in pursuance of rule 16(2) any party aggrieved by his decision may appeal to a judge and in that case the judge may determine the appeal himself or refer it in whole or in part to the Appeal Tribunal.
Notice of appeal under paragraph (1) of this rule may be given to the Appeal Tribunal, either orally or in writing, within [five] days of the decision appealed from..."In this case it is pointed out that the Registrar gave her decision refusing extending time on 22 September 1993. It was not until 15 October that the Fulham Legal Advice Centre, acting on behalf of Mr Lenihan, notified this Tribunal of Mr Lenihan's intention to appeal against the Registrar's decision. In a letter of 27 October it was pointed out to the Legal Advice Centre:
"However the Appeal from the Order is 20 days out of time and the question of time will be considered as a preliminary point at a hearing by a Judge."
The argument presented by Mr Zuke was that I should decide the question of the appeal from the Registrar being out of time before dealing with the merits of the appeal against the Registrar's decision.The basis for his submission was that Mr

Justice Wood held in Martin v British Railways Board [1989] ICR 24 that:

"The practice on an appeal from a registrar of the Employment Appeal Tribunal to a judge is the same as that which applies under R.S.C., Ord. 58 on an appeal from a Queen's Bench master to a judge in chambers. It is an actual re-hearing of the application which led to the order under appeal and the judge will treat the matter as though it came before him for the first time. The judge will apply the principles enunciated in Evans v Bartlam [1937] A.C. 473 per Lord Atkin at p. 478. The judge is no way fettered by the previous exercise of the master's discretion. On other matters of practice the judges of this appeal tribunal will tend to follow the practice of the judge in chambers in the Queen's Bench."
Mr Zuke referred to Order 58 which gives the right of appeal from the master to the Judge in Chambers and provides for Notice of Appeal to be given within 5 days of the judgment, order or decision appealed against. He points out that in the notes under 58/1/5 this Rule must be read with Order 3 Rule 5, so that the time limited for appeal may be extended by the master and the time limited by the master may be extended by the Judge in Chambers after such time has expired or the 5 days for appealing have elapsed. The note refers to a decision of the Court of Appeal in Revici v Prentice Hall Incorporated [1969] 1 Weekly Law Reports 157 to the effect that where no explanation, excuse or reason is given for the delay in issuing the Notice of Appeal, the Judge may refuse to extend the time.It appears from Revici that the Court of Appeal held unanimously that the Rules of the Supreme Court as to time had to be observed. In that case substantial delay had occurred without explanation being proffered. That entitled the Judge, in the exercise of his discretion, to refuse the extension, even though no injustice would have been done to the other side by granting the extension.Mr Zuke submitted, on the basis of Martin and on the analogy with the Order 58, that in this case I should refuse to extend the time for appealing against the Registrar's Order and should dismiss this appeal simply on the ground that it was out of time. I decline to accept that submission. Mr Zuke is right in submitting that no specific reason or explanation has been offered which satisfactorily explains the delay between the decision of the Registrar and the notification of the appeal against her decision. The best that Mr Hansen was able to offer by way of explanation was that, after the Registrar's decision, Mr Lenihan consulted the Fulham Legal Advice Centre on 7 October. Thereafter the Advice Centre acted on his behalf with reasonable expedition. The 5 day time limit for appealing had expired before 7 October.The only other point that Mr Hansen could make in relation to the delay in appealing was one with more substance. Mr Lenihan had been acting `in person' at the time when he applied to the Registrar to extend time for appealing. He remained acting in person until he consulted the Fulham Legal Advice Centre. He pointed out that it was observed by Mr Justice Wood in Martin at page 33A that, where someone is acting in person and needs guidance, a more lenient approach to time limits may be justifiable.In relation to that case that there was a failure to observe time limits in relation to appealing from the Registrar, though no point had been taken by it on behalf of the Respondent. That appears from page 27(c) of the report.I have taken full note of Mr Zuke's very clear submissions on this point. I reject them for this reason. The power of this Tribunal to extend time limits, both in relation to appeals from the Industrial Tribunal and in relation to appeals from the Registrar's decision to the Judge, is in broad unqualified terms. Rule 30 of the Employment Appeal Tribunal Rules provides:
"The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged..."
It is implicit in that rule that the power to extend time can be exercised wherever, in all the circumstances, the Tribunal considers it just to do so.In general, as I have already said, the Tribunal insists strictly on time limits because that is the just course to take. A time limit has to be put on appeals against any decision in order to bring finality and certainty to proceedings. Certainty and finality are most important factors in consideration of what is just or not. Exceptions have to be made to time limits. This is recognised by providing in a rule that time limits can be extended. An exception, in my view, should be made in this case because of the strength of Mr Lenihan's case against the decision of the Registrar. In deciding whether or not to extend time limits a Court or Tribunal is entitled to take into account the case for overturning the decision attack. The stronger the case the stronger the argument for extending the time limit to enable an erroneous decision to be corrected.I have already explained my reasons why the Registrar's decision was wrong.I therefore decline Mr Zuke's argument that this appeal should be dismissed simply on the grounds that it was out of time.For all those reasons the order which I shall make is that the appeal against the Registrar's Order will be allowed. I will extend the time, insofar as it is necessary to do so, for the presenting of the appeal against the decision of the Industrial Tribunal. I shall extend the time for appealing against the decision of the Registrar.