Nimmo v Avon Ambulance Services NHS Trust [1995] UKEAT 122_94_2102

EAT
Nimmo v Avon Ambulance Services NHS Trust
[1995] UKEAT 122_94_2102 · 1995-02-21
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Registrar in an order dated 21 April 1994. She refused to grant an extension of time to an extension of time to appeal to Mr D H Nimmo. Before making that order she had considered written representations in letters written on behalf of Mr Nimmo and on behalf of the Respondents to the appeal, Avon Ambulance Services NHS Trust. The dispute between the parties was heard by the Industrial Tribunal sitting at Bristol on 14 December 1993. At the hearing Mr Nimmo represented himself, though when he decided to make the application to the Industrial Tribunal he had been represented by Unison. His grounds of application were settled by Counsel on his behalf. His application was decided by the Industrial Tribunal against him for reasons sent to the parties and entered on the Register on 29 December 1993. The Tribunal unanimously decided that Mr Nimmo's entitlement to redundancy payment was to be calculated upon a period of continuous service commencing on 1 November 1988 and in accordance with the provisions of the Employment Protection Consolidation Act 1978. The hearing of a further claim for unfair dismissal was adjourned on the basis that the Tribunal understood that terms of settlement had been agreed between the parties upon the substantive claim of unfair dismissal, without prejudice to Mr Nimmo's right to appeal, if advised, against the Tribunal's decision upon the declaration sought by him under Section 112 of the 1978 Act. On that basis all further proceedings were stayed with liberty to either party to restore the hearing.The time for appealing against the decision is set out in Rule 3 of the Employment Appeal Tribunal Rules 1993 . The period within which an appeal may be instituted to the Appeal Tribunal is 42 days from the date on which extended written reasons of the decision or order of the Industrial Tribunal were sent to the Appellant. The Notice of Appeal was not received in the EAT until 10 February. The forty-two days expired on the previous day. The relevant date relied on by Mr Kibling on behalf of the Appellant is that although the decision was sent on 29 December 1993, it was not received by the Appellant until 6 January. The first that Mr Nimmo did about appealing from the decision was when, on 3 February, four weeks later, he telephoned the EAT and had a conversation with somebody at the Tribunal in which he says he was advised that he had twelve days in which to lodge an appeal - that was on Thursday 3 February. The next step taken by Mr Nimmo was on the following Tuesday 8 February, when he went to see his brother, who is a solicitor, about acting for him. The evidence then shows that on the following day, 9 February, his brother spoke to someone at the EAT. He says he was advised that 10 February was the last day for lodging the appeal.The Notice of Appeal was sent in by fax with a covering letter on 10 February. When Mr Nimmo was informed that the appeal was one day out of time, an application for extension was made. That application was refused by the Registrar, whose order he has appealed against today. The grounds on which the extension were sought were set out originally in a letter dated 7 March 1994 sent by Sims Cook & Teague to the EAT. They are a firm of solicitors whose partners include Mr Nimmo's brother. There is now an Affidavit sworn yesterday by Mr Nimmo, setting out in more detail than is contained in the letter, the circumstances in which he failed to serve his Notice of Appeal in compliance with the rules. The Affidavit contains an explanation for the delay by him in dealing with the written decision received on 6 January. The crucial question on this appeal is whether the explanation which he gives excuses his failure to serve the Notice of Appeal on time and would justify the exceptional step of extending time.I shall not read out the details of the Affidavit. They are of a personal nature.Mr Nimmo says that throughout January he was at the centre of considerable domestic problems concerning his wife and his four children. He gives detail about the problems that preoccupied him, matrimonial problems, financial problems, accommodation problems. He frankly accepts that throughout that time, through the whole of January, he did not seek any legal advice. It also appears that he did not do anything about the appeal. He then says that:
"...on Thursday 3rd February I telephoned the Employment Appeal Tribunal and explained the circumstances of my case and the date the decision was posted to me and I was told that I had twelve days left in which to appeal. I cannot remember the name of the gentleman that I spoke to, all I can remember is that he had an accent, I believe an Asian accent."
There is no explanation of why he left it from 3 February until 8 February before seeing his brother for legal advice. One assumes that the reason he did nothing is that he said he was led to believe that he had another twelve days in which to appeal. He saw his brother on the evening of 8 February, handed him a copy of the decision which he wished to appeal and explained to him what he had been told about the time limit. He sets out what his brother told him of what happened on the following day. His brother, as a solicitor, appreciated the urgency of the matter. He telephoned the EAT to check the relevant time limit. He said his brother told him he spoke to a gentleman with an accent who was helpful and was advised that the last day for the appeal was Thursday 10 February. He would fax his brother a Notice of Appeal which could be completed and lodged by fax on 10 February. This conversation took place before mid afternoon. There was produced in support of that an Attendance Note, which he believes and is informed by his brother, was made by him when he made the telephone call to the Tribunal. He has also produced a fax of a proforma Notice of Appeal sent at 14.33 from the EAT.He refers to the details of the matters set out in the manuscript attendance note of the conversation. Finally he points out that he represented himself before the Industrial Tribunal and continued to represent himself throughout the forty-two day appeal period, save for the time when he sought his brother's advice and assistance on 8 and 9 February. Mr Kibling, on behalf of Mr Nimmo, has said everything that could possibly be said in support of the appeal from the Registrar's refusal to extend time. He points out correctly it is a matter of discretion, which should be exercised in accordance with well-settled principles. There were genuine grounds in this case for granting an extension. Mr Nimmo had represented himself. The authorities show that people who are unrepresented may receive more lenient consideration on time limits than those who are legally represented. Both Mr Nimmo and his brother had been erroneously advised by some one unidentified person at the EAT that a claim on an appeal notice lodged on 10 February 1994 would be in time. When it was lodged, it was only one day out of time. It was not a matter of weeks or months out of time.As to the nature of the appeal Mr Kibling pointed out that the facts are not in dispute.It is a question of law of some importance. He submits that there are good grounds of appeal. No prejudice would arise from the one day's delay in lodging the Notice of Appeal. As to the excuse for not getting the Notice of Appeal within the forty-two days, Mr Kibling reminded me of the domestic difficulties and the distractions as recounted in the Affidavit. The appeal is opposed by Mr Segal on behalf of Avon Ambulance Services NHS Trust. Relying on the authorities he emphasised these points: there must be an excuse, not simply an explanation for the delay. It is only in rare and exceptional cases that an extension of time is granted. In deciding whether or not to extend time the merits of the appeal, the importance as a point raised by it and the shortness of the period by which the relevant time has been exceeded are of little or no weight. What really matters is whether a satisfactory excuse has been provided for failure to comply with the rule. An explanation had been provided, but it is in no sense an excuse or justification for failure to comply with the time limits. As to the reliance by Mr Nimmo's brother on the advice from the Appeal Tribunal's staff, that did not explain why Mr Nimmo had only attended to the matter one day before the time limit had expired. As said in the earlier cases, solicitors and other legal advisers are expected to know the law and procedure of the Tribunal. It is for them to get it right. That fact must be borne in mind when the argument is advanced that the Legal Adviser has relied on a statement made by someone at the Appeal Tribunal or in some other official place, such as the Industrial Tribunal.Those are all the arguments. It is not necessary to refer to the cases. The legal position is conveniently summarised in a recent decision given in this Tribunal, United Arab Emirates v Abdul Gaffir [1995] ICR page 65. Applying the principles summarised there I have reached the conclusion that, harsh though it may seem to Mr Nimmo and those advising him, this appeal should be dismissed. Mr Nimmo's domestic circumstances may elicit sympathy and I can well understand how being only one day out of time may seem to be unimportant to the Appellant, particularly when no prejudice is claimed to have been suffered by the Respondent, other than losing the protection of the time limit for appealing. This is a case, however, where the principle of compliance with the rules outweighs the justification for making an exception. As has been pointed out on many previous occasions time limits for appeals are strictly applied. Six weeks is a generous period. The evidence shows that for four of the six weeks Mr Nimmo did nothing in relation to his appeal. He did not go to seek advice from the Union, who had originally assisted him. He did not go and see his brother, who was a solicitor, during the four weeks from 6 January to 3 February. He did not phone the EAT or anywhere else to make enquiries. The fact is, that if nothing is done for a large part of the period of six weeks and it is then left to the last few days, there is a higher risk that the Appeal Notice will not be served within the time limits. The person who has delayed during that period takes that risk. Although it may initially attract sympathy that the appeal is only one day out of time, it is more relevant to look at the failure to provide an excuse for not doing anything for a large part of the forty-two day period. For those reasons the appeal is dismissed.