Heeley v South Bedfordshire Community [1995] UKEAT 134_95_1406

EAT
Heeley v South Bedfordshire Community
[1995] UKEAT 134_95_1406 · 1995-06-14

JUDGE HULL QC:

This is a case in which Mr Heeley seeks leave to appeal out of time against a decision of the Industrial Tribunal sitting at Bedford on 29 July and 13 September 1994. The Tribunal sat under the Chairmanship of Mr Carruthers with two Members. Mr Heeley had made a complaint against the Respondents, the South Bedfordshire Community Health Care Trust, that he had been unfairly dismissed and he wanted, alternatively, a redundancy payment. The Industrial Tribunal dismissed his claims. Their decision, which as I say was wholly unfavourable to Mr Heeley, was promulgated on 19 October 1994. The time for appealing is forty-two days and that expired on 30 November 1994 and there was no appeal within the time required by our rules. In fact, he was not totally inactive. He had contacted his trade union immediately the decision was promulgated. It was not until 3 November that he got a letter from them saying that they would not act for him. It was inconsiderate of them to reach their decision so belatedly and not to send a strong warning about the time limit for appealing, because to some extent it put Mr Heeley in a spot, or would have done, if he had known about the time limit; because he then had less than a month in which to appeal.He went to the Citizens Advice Bureau and they suggested he should see his MP. Before that he had consulted local solicitors to ask if they would undertake the case on his behalf and they quoted a sum of £2,000 for costs if they were to undertake the appeal for him. I have no idea how that sum was arrived at, or whether it is a reasonable or unreasonable sum; certainly it would be a large sum for Mr Heeley. It may well be that they did not undertake such work themselves and would have to instruct Counsel; that would probably add to their bill. As a result of being advised to consult his MP, Mr Heeley went to see Sir Nicholas Lyell by appointment. He had to wait quite a time for the appointment and he did not see Sir Nicholas until 16 December. Sir Nicholas wrote a letter dated the 20 December from the House of Commons in his capacity as a Member of Parliament for Mr Heeley, setting out the merits of his case. On the whole, Sir Nicholas is not dealing with the question of extension of time, except by referring to the general merits of the case and that was written to the President of the E.A.T. with a communication from Mr Heeley himself saying:
"I ask leave to appeal out of time. Since my union would not support me any further I did not know where to turn and therefore wrote to my Member of Parliament. I enclose a copy of my letter at that time, as I say, there were only 20 days left for me to appeal. I saw Sir Nicholas Lyell at his advice centre on 16th December and he wrote the letter of 20th December on my behalf. I believe that I have acted reasonably and that the respondents have not been prejudiced by the delay and I ask that I be allowed leave to pursue my appeal."
The legal case on the subject is Marshall v Harland & Wolff Ltd [1972] ICR 97 which took the form of a practice direction. It was a decision of Sir John Donaldson with two members of the National Industrial Relations Court which was the precursor of this Employment Appeal Tribunal. It has many many times been adopted and repeated in this Tribunal and so far as I know, nobody has ever doubted the authority of that case. The headnote reads as follows:
"The time limit of 42 days for appealing from industrial tribunals to the Industrial Court (for that one must read E.A.T.) must be strictly observed, and extensions of time for appealing will be granted only in rare and exceptional circumstances; where delay is being caused by an application for legal aid, notice of appeal must nevertheless be lodged within time and application should then be made to defer the hearing of the appeal."
turning to the text of the direction given by Sir John:
"... No business can be run, unless it is possible within a reasonably short time to rule off the books and say:
"We have met our liabilities in respect of wages, etc. There are no further liabilities in respect of wages, redundancy payments or anything of that nature."
Furthermore, the principle which has been adopted by the ordinary courts (as opposed to special courts, of which this is one) has long been that whilst they will, in appropriate circumstances, extend the time for beginning original proceedings, they are much less willing to do so in the case of an appeal. This is only common sense. The potential appellant has had his trial, he has had one chance of obtaining a favourable decision from an impartial tribunal. There is, therefore, much less reason for giving him a second chance than if he had never had a trial at all.... It is of paramount importance, in dealing with industrial relations, that time-tables should be strictly adhered to. The amount of time allowed for appeals of this nature has been very fully discussed with all interested bodies, and it has been decided that it shall be 42 days...."That reference is very important because the existence of the E.A.T. and the Industrial Tribunals, in the form in which they now stand and have stood for a number of years, is really the result of something very like an act of settlement. The different interests in industry were consulted very fully by those concerned with the primary legislation and the secondary legislation and the time limits which have now emerged, as Sir John says, were the result of very full discussions with all those interested and it is therefore right to say that this particular scheme of legislation has a greater aspect of political consensus than many other pieces of legislation. Sir John comments on that and draws strength for his view from that. He says:
"... And it is perhaps right that all who are concerned with appeals to this court should be told once, but once only, that when this court lays down a time-table it intends that it shall be strictly observed."
That was the very trenchant view of Sir John Donaldson as he then was, Chairman of the Industrial Relations Court. So far from that view ever being doubted or departed from, it was emphatically repeated by the President of this Tribunal very recently in a case called United Arab Emirates v Abdelghafar [1995] IRLR 243 ; he adopted expressly what was said by Sir John Donaldson. He gave examples of the various excuses which are given for delay and said:
"They do not in fact excuse the delay, they amount to explanations no doubt, such matters as ignorance of the time limit or oversight of the passing of the limit for example by a solicitor under pressure of work. The limits will therefore only be relaxed in rare and exceptional cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the rules."
There he was expressly adopting what had fallen from Sir John. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even though the delay is very short. Extensions have been refused even where the Notice of Appeal was served only one day out of time.
"Thus the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default. (b) Does it provide a good excuse for the default. (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time."
It was not until the 21 December 1995, three weeks out of time, that this appeal was presented to this court. I have looked to see whether there are any rare and exceptional circumstances here, as they could properly be called; something quite out of the ordinary. I cannot find anything of that sort at all. Mr McColl, to whom I am extremely grateful for his assistance, pointed simply to matters which, in my experience, are almost commonplace. He failed to get the backing of his Union. They were somewhat dilatory in telling him that they were not prepared to act for him. He consulted local solicitors who cited what must seem to Mr Heeley a very large sum of money. That again is commonplace. Then he got in touch with his MP. It seems to me that none of that, although it undoubtedly gives rise to sympathy and I do not suggest for one moment that Mr Heeley has behaved in any blameworthy way, amounts to rare and exceptional circumstances at all. They are simply misfortunes of a gentleman who is not a lawyer and has no general acquaintance with the law; missing the time limit because he is doing other things connected with the appeal, but not actually sending a Notice of Appeal. If he had got in touch directly with the only body which can hear the appeal, the E.A.T., he would have been told at once that he could have the form for appealing. He could fill it in; it might not be done skilfully. He could have done that quite comfortably within the six weeks which were available to him. In fact he took other steps but they do not, to my mind, represent anything remotely approaching rare and exceptional circumstances entitling me to extend the time limit. In view of the trenchant language in the authorities which have stood unchallenged for more than 20 years, I am bound to exercise my discretion by rejecting this application.