Modgil v Indian Workers Association [1995] UKEAT 1000_94_0607

EAT
Modgil v Indian Workers Association
[1995] UKEAT 1000_94_0607 · 1995-07-06
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Registrar. She made an order on 2nd March 1995 refusing to grant an extension of time for appealing. An application for an extension was made by Mr Jai Krishnan Modgil who had brought a case for Race Discrimination contrary to the Race Relations Act 1976 against the Indian Workers Association. He had started that case on 14th September 1992. The hearing took place before the Industrial Tribunal on 14th December 1993. At the hearing both sides were represented by Counsel. The Tribunal notified the parties on 9th February 1994 of the reasons for their decision. The reasons were in full form. For those reasons the Tribunal unanimously decided that Mr Modgil's application failed and should be dismissed. He was ordered to pay £1,500 costs.On 23rd February 1994, solicitors representing Mr Modgil, Messrs Sohal & Company, applied to the Industrial Tribunal for a review of that decision. The ground of the application was that the Tribunal wrongly concluded that the selected candidate was a Muslim and not a Sikh. Mr Modgil was able to provide evidence which was not available at the time of the hearing before the Industrial Tribunal. Another ground of review that the Tribunal had wrongly concluded that his application was frivolous and had wrongly ordered costs against him.On 27th June 1994 a letter was written to Mr Modgil's solicitors saying that the Chairman had considered the representations. It was pointed out that no sufficient reason was shown why that the expert evidence, referred to in the application for review, was not available at the hearing. The letter added:
"In any event, the Tribunal accepted the evidence before it that the successfully appointed applicant had not acted in accordance with these `rules', and still regarded herself as a muslim."
The application for review was refused.Mr Modgil served a Notice of Appeal. It arrived at the Employment Appeal Tribunal on 30th September 1994 under cover of a letter of the same date. The ground of appeal was against the decision of the Tribunal refusing to review the decision of 9th February 1994. The grounds of appeal were stated to be these:
"1. The evidence considered by the Tribunal on Hindu and Sikh religion was not provided by an expert despite the direction of the Tribunal.
2. Tribunal failed to consider subsequent facts discovered by the Appellant."The Notice of Appeal was served more than 42 days after the notification of the refusal to review. In those circumstances it is out of time.Mr Modgil provided only a brief explanation as to why his appeal is out of time. He went to India in January 1994 and returned after several months. He said that he feels desperate about losing his case. He considers that justice requires that this appeal should be heard. The appeal can only be heard if an extension is granted. The rules of this Tribunal about time limits are strict. The rules clearly lay down 42 days from notification of the decision as the relevant time for serving an appeal. The decisions of this Tribunal are all to this effect: an extension is only granted if a good excuse is made for not complying with the time limit. The explanation given by Mr Modgil for not complying with the time limit is not a good excuse. He has had the benefit of legal advice. He had Counsel and solicitors in the Industrial Tribunal. He had solicitors representing him when he made the application for review. If he did not know of the time limits he could have found out by asking. His unawareness of time limits and his visit to India are not excuses for failing to observe the rules.The application for the extension of time has been opposed by the Indian Workers Association. They sent a letter to the Tribunal dated 26th June 1995 explaining that they would not be appearing today. They wished there written representations to be taken into account. They say quite simply that the case was clearly decided in their favour. The Tribunal came to the conclusion that the case was brought frivolously and vexatiously. The case was decided along time ago. An application for review was unsuccessful. The Notice of Appeal was out of time.The Registrar was right to refuse an extension of time. Though I appreciate that this must be matter of disappointment to Mr Modgil, I am obliged by the rules and the practice of this Tribunal to refuse his appeal against the Registrar's decision. He has not shown an good excuse for not complying with the rules. The appeal is dismissed.