Bruce & Ors v Nathan & Co [1995] UKEAT 192_95_1710

EAT
Bruce & Ors v Nathan & Co
[1995] UKEAT 192_95_1710 · 1995-10-17
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal against the refusal of the Registrar to grant an extension of time in which to enter a notice of appeal. The refusal is contained in an Order dated 8 March 1995. Notice of appeal against that decision was given by the Applicant's solicitors on 20 March 1995.The need to apply for an extension arose in these circumstances. In November 1993 the Applicants, Mr Bruce, Mr McMahon and Mr Phillips, presented originating applications to the Industrial Tribunal claiming against their former employers, Nathan & Co, that they had been unfairly selected for redundancy. They were all Sheriffs' Officers. As appears from the originating applications, at that time they were all unrepresented. On 24 March 1994 they instructed solicitors to act for them in the proceedings. A letter was sent on 25 March by their solicitors, J R Jones of Ealing, informing the Regional Office of the Industrial Tribunals at London (North) that they had been instructed in relation to the case of Mr Bruce and they understood that the cases of Mr Bruce, Mr. Phillips and Mr McMahon had been consolidated and would be heard together. There was then correspondence between the Regional Office and J R Jones, solicitors, about various interlocutory matters.The hearing took place before the Industrial Tribunal at London (North) over four days, 7 July, 10-11 October and 22 November 1994. At the hearings the Applicants were represented by Counsel instructed by J R Jones. Mr Ryder was the Counsel. Mr Aston, a solicitor, represented the Respondents, Nathan & Co.At the end of the final day of the hearing the Chairman of the Tribunal, Mrs Martin, gave oral reasons for the Tribunal's decision. The decision was unanimous that the three Applicants had been unfairly dismissed on the basis that the selection criteria were unfair, but it was indicated that no compensatory award would be made and there would be no basic award, because each of the Applicants had received a redundancy payment. The basis of the refusal to award a compensatory amount was that they had not mitigated their loss.Mr Ryder indicated that he had instructions that his clients wished to appeal. Mrs Martin indicated that she anticipated that and would give extended reasons. Extended reasons are necessary for the purpose of an appeal, because of the requirements of Rule 3(1)(c) of the Employment Appeal Tribunal Rules.Extended written reasons were sent to the parties on 15 December 1994. It is undisputed that they were sent to the three Applicants individually, but were not sent to J R Jones. The Applicants' case is that, in the circumstances which I shall describe in a moment, they assumed that their solicitors would institute appeal proceedings in accordance with instructions that they had already given. Unfortunately, J R Jones were unaware that extended written reasons had been notified, because it was not until 15 February 1995, after the expiry of the time-limit, that they became aware that the extended written reasons had been notified to their individual clients. As soon as they became aware of that they served a notice of appeal received by the Employment Appeal Tribunal on 17 February 1995. The notice of appeal was accompanied by a letter dated 16 February saying:
"Due to an oversight on the part of the Tribunal, we only received a copy of the decision by facsimile transmission yesterday evening."
The Registrar considered the representations in that letter and also representations made against the grant of an extension, made by Aston's in letters of 6 and 8 March. Some further representations were made by J R Jones in their letter of 7 March. That letter stated that the three clients had instructed them not only to act for them in the Industrial Tribunal, but had also instructed them to appeal against the decision, given orally by the Industrial Tribunal. The letter stated:
"The Applicants were under the wrong impression that we had received a copy of the Decision from the Tribunal. It was reasonable for the Applicants to have reached this conclusion. The fault lies with the Tribunal in that the Tribunal failed/omitted to send a copy of the Decision to this firm.
That, in outline, is the material that was before the Registrar when she refused to grant the extension.There is one other matter before I consider the further material made available since that decision. At the date when the Registrar considered this matter, the form of the notice of appeal did not comply with the Rules of the Employment Appeal Tribunal.

(a) :

"a notice of appeal in, or substantially in, accordance with Form 1 or 2 in the Schedule to these Rules;"
Form 1 in the Schedule sets out set out the notice of appeal from a decision of an industrial tribunal which, in paragraph 6, provides this:
"The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that (here set out in paragraphs the various grounds of appeal).
In this case the notice of appeal said, in paragraph 5 simply this:
"The Industrial Tribunal erred in law and/or alternatively made a perverse decision on the facts. Further grounds may be added to or amplified at a future date."
The covering letter of 16 February already quoted stated at the end:
"We shall shortly be forwarding to you the Grounds of Appeal and in the circumstances we would kindly request the Tribunal to grant the Applicants an extension of time in this regard."
The grounds of appeal were not sent to this Tribunal and to the Respondents' solicitors until a letter dated 12 October when various documents, including unsworn affidavits and a skeleton argument, were submitted.There are before me many more documents and considerably more facts than were before the Registrar. There are four sworn affidavits. Two of the Applicants, Mr McMahon and Mr Phillips have sworn affidavits. Mr Bruce, the other Applicant, unfortunately died on 9 July 1995. An affidavit has been sworn in relation to his appeal by his widow, Sheila Bruce. There is also a detailed affidavit from the partner in the form of J R Jones, Karen Fernandes. During the course of the hearing I have also been provided with further information about the Legal Aid position and the reasons for the delay in the submission of the grounds of appeal. I have had the benefit of skeleton arguments and oral submissions from Mr Bradley for the Applicants and Mr Aston for the Respondents. I am indebted to them both for their help in this unusual case.It is not necessary to refer to authority. It is common ground between the parties that what I have to do on this appeal is to consider the exercise of the discretion to extend time, having regard to the explanations given for the failure to comply with time-limits, asking whether the explanation provides good excuse and whether all the circumstances of the case justify the exceptional step of granting an extension of time. I shall refer briefly to the affidavit evidence for the explanation.I start with the affidavit of Karen Fernandes. She describes the circumstances in which her firm came to be instructed by the Applicants, instructed Counsel and was present with Counsel at the hearings before the Industrial Tribunal. She refers to the events of 22 November when the Tribunal gave oral reasons for the decision through the Chairman, She says that Mr Ryder indicated to the Chairman that his clients would be considering an appeal. The Chairman indicated that she had anticipated that that would be the case. Mrs Martin said the decision would be sent in writing. The affidavit states:
"Outside the Tribunal, the Appellants were adamant that they wished to appeal the decision and gave instructions accordingly. I informed them that `written reasons' for the decision would be sent to my offices and I would forward them to Counsel for the purposes of considering an appeal. It was my understanding and belief that the Appellants had left the matter in my hands pending my receipt of the written reasons."
She explains how she came to find out, but only too late, that the individual clients all received an extended reasons shortly after 15 December 1994 and that she was not aware of this at the time. In referring to previous correspondence exhibited, she says that she presumed that the decision would be sent directly to her. She explains how she was away from the office from 20 December to 6 January, but gave instructions to a partner to forward the written reasons if they were received while she was away. They were to be forwarded to Counsel.The first Karen Fernandes knew about the extended reasons was on 15 February when Mr McMahon informed her that he had received a copy of the written reasons. He was very concerned and surprised when she informed them that she had not received a copy. She immediately requested a copy of the decision from the Industrial Tribunal. On receipt of it she forwarded a notice of appeal in the form mentioned, with an application for an extension of time in the covering letter. She explains that the notice of appeal contained only minimal details of grounds, because she had not obtained Legal Aid for any of the Applicants. It was her intention to particularize the grounds once Legal Aid was granted to instruct Counsel. She says in paragraph 12:
"I have been involved in numerous employment cases over several years and have never before encountered a situation where the Industrial Tribunal's decision has been sent direct to the Applicant in person, when I have made it clear to the Regional Office of Industrial Tribunals that I have been acting for the Applicant.
She expresses the view that the clients' belief that she had received a decision and was processing the appeal, in accordance with their instructions to her of 22 November, was wholly reasonable in the circumstances.The affidavits sworn by Mr McMahon, Mr Phillips and Mrs Bruce give an account of the events from the clients' point of view. It is important to refer to those. They are all to the same effect. At the hearing on 22 November, when Mrs Martin gave the oral reasons for the decision adverse to them on the question of compensation, they gave instructions to appeal. Mr McMahon's affidavit, paragraph 7, states:
"Outside the Tribunal, Mr Phillips, Mr Bruce and myself were all adamant that we wanted to appeal the decision and we gave instructions accordingly. I was informed by Ms Fernandes that `written reasons' for the decision would be sent to her offices and she would forward them to Counsel for the purposes of considering an appeal. I considered that I had done what was needed of me insofar as indicating my intention to appeal, and left the matter in the hands of my solicitor to ensure that the appeal was instituted."
He explains how he received the written reasons shortly after 15 December and presumed that the solicitor must also have received them at the same time and that an appeal would be put in on his behalf. He also presumed that, having already given instructions, if there was anything further he needed to do, he would be contacted by Ms Fernandes. He was not sure exactly how the appeal would be funded, whether by Legal Aid, green form, privately or otherwise, but presumed that, if any further information was needed from him before the notice of appeal was sent in, he would be contacted. He adds in paragraph 10 that he was informed by Counsel on 22 November that the appeal was a question of law. He understood that to mean that it was relatively complicated. So he did not make any efforts in furthering the appeal on his own behalf, other than leaving it in the hands of his legal advisers. He explains how, when he contacted Ms Fernandes on 15 February 1995, after previous unsuccessful attempts to contact her on a number of occasions, he discovered to his surprise that she had not received the written reasons and that time for instituting the appeal had expired.Mr Phillips swears an affidavit in similar form which does not add anything of significance to what is said by Mr McMahon.Mrs Bruce swears an affidavit in a slightly different form, because of the situation following her husband's death in July 1995. In the significant parts of the affidavit she confirms the situation described by Mr Phillips and Mr McMahon. She says in paragraph 10:
"In February 1995, Mr Bruce was informed that Ms Fernandes had not received the written reasons and that time had expired for instituting an appeal. It was very important to Mr Bruce, prior to his death, to ensure that this case was properly pursued, and it is my belief that he had no idea that an error had occurred until it was too late."
On the basis of that material, Mr Aston submitted on behalf of Nathan & Co that I should dismiss this appeal. He presented his arguments succinctly and clearly. He says that none of the Applicants had named a representative in their originating applications. That appears to be the reason why the Industrial Tribunal sent the extended written reasons directly to the individuals and not to their solicitors. He points out correctly that the practice of an industrial tribunal, in sending out the extended reasons, is to include covering documents which advise recipients of rights of appeal, including the time within which an appeal must be made, i.e., 42 days from the date on which the written reasons are sent out. He makes the valid point that, on receipt of these documents, each of these individual Applicants was put on notice as to the time-scale for submitting an appeal. It appears from the affidavits sworn by them that none of them got in touch with the solicitors at that time to ascertain whether their appeal had actually been submitted. In these circumstances it was not reasonable for any of them to have assumed that the appeals would be submitted by the solicitor on their behalf. They should have checked that this was actually done. If any of them had done this, the solicitors would have been alerted to the fact that written reasons had been sent out. They could then have submitted the appeals within the 42 days. The failure of the solicitors to put the notices of appeal in in time was due, he said, to the failure of the three Applicants to take any action at all after they had received the extended reasons, even though they knew that their appeals were subject to the time-limit of 42 days. In those circumstances, Mr Aston submitted that the explanation given for the delay did not constitute a proper excuse. There were no exceptional circumstances in this case which would justify an extension of time.Those are, in my view, the best arguments that could be put forward on behalf of the Respondents. I have paid careful attention to them since, in the vast majority of cases, the arguments opposing an extension of time are cogent and compelling. Most applications for extensions of time are not exceptional. There are routine excuses for not knowing the time-limit or over-looking the time-limit because of pressure of work or other distracting circumstances or delays in the processing of Legal Aid applications or delays in seeking other forms of support for an appeal, such as from the Equal Opportunities Commission or from a union or from the Commission for Racial Equality. In my view, the circumstances in this case are so unusual that they can be described as exceptional. The explanations given for the failure to put in the notices of appeal in time do amount to a good excuse.I accept the submission on the behalf of the Applicants that the explanation given is a full and satisfactory explanation, i.e., that solicitors were instructed not only to act in the proceedings in the Industrial Tribunal. The solicitors were expressly instructed on 22 November 1994 to appeal against the decision for which oral reasons were given on that date. In my judgment, that explanation amounts to a good excuse for the individual Applicants taking no steps themselves in relation to the appeal when they received the extended written reasons. Once a person has instructed solicitors to act for them in a particular matter, in this case instructions to act in the appeal and to institute appeal proceedings, it is reasonable for them to assume that that was being done and that, if anything needed to be done by them, the initiative would come from the solicitors.This is particularly understandable and excusable in relation to an appeal to this Tribunal which, as pointed out by the advisers to the Applicants at the time, has to be on a legal point. There is no appeal to this Tribunal generally. It can only be on a question of law arising from a decision or in relation to proceedings in an Industrial Tribunal. In those circumstances, the Applicants were justified in believing that they need do nothing more in relation to the appeal, having given those instructions, unless and until they were asked to provide further instructions in relation to the conduct of the appeal. I conclude that there was a good excuse.I still have to ask whether, in all the circumstances, including the good excuse, I am justified in granting an extension. In my view, I am. It is very rare, in my experience, for Industrial Tribunals to overlook the fact that the parties are represented and to send the decision to the lay client rather than to the solicitor. It is also fair to state, as is pointed out in the Appellant's skeleton argument, that in this case it is difficult to see how, if an extension of time were refused, these clients would have any remedy against their solicitors. It is difficult to criticise the solicitors for not acting on the instructions to institute an appeal when they had not received a document essential to the institution of the proceedings, namely, the extended reasons. It is not a case where they can be criticised for failure to enquire about the extended reasons. The time which had passed from 22 November was not such as to require the solicitors to make enquiries of the Industrial Tribunal about when the extended reasons would be available. The pressure on Industrial Tribunals is such, particularly at busy centres like London (North), that months sometimes pass before extended written reasons are available in some cases.One particular feature has concerned me about the exercise of the discretion: the notice of appeal, for reasons mentioned, was not in the correct form. The covering letter promised grounds of appeal. That was back in February. The grounds of appeal were not provided to this Tribunal or to Mr Aston until a letter was sent by J R Jones enclosing the grounds of appeal and other documents. That letter is dated 12 October. If the Tribunal is asked to exercise a discretion, it must look at all the circumstances. One would expect diligence in all matters from the party and his advisers seeking the indulgence of an extension. I have received from Mr Bradley, who appeared for the Applicants, an explanation about the complications in clarifying the Legal Aid position of the three Applicants. Although it appears from the documents that Mr Phillips had been granted a Legal Aid certificate on 9 March it appears that limitation was imposed relating to the granting of Legal Aid to all three. As I understand the position, Legal Aid was not granted in Mr McMahon's case. It was only recently that that limitation was removed to enable Counsel to be instructed in relation to the drafting of the grounds of appeal and the submission of a skeleton argument on the appeal from the refusal of the extension. It appears from the instructions given to Mr Bradley that files relating to these cases have been mislaid by the Legal Aid Board.I am satisfied by these explanations, coupled with the fact that the delays which have occurred in hearing this appeal have not been as a result of the absence of the grounds of appeal. They have been the result of the congestion of business in this Tribunal. That is not the fault of the Applicants or any other party. For all those reasons, I have reached the conclusion that this is one of those exceptional cases in which I should allow the appeal against the Registrar's refusal to grant an extension and grant an extension of time for appealing. I grant that extension to 13 October. I would normally grant the extension only to the date when the notice of appeal was served but, as already explained, the notice of appeal was not in a proper form. It only became in a proper form when the grounds of appeal were submitted. The appeal is allowed and time extended to 13 October 1995.