Bank Of Tokyo International Ltd v Wood [1995] UKEAT 265_95_2106

EAT
Bank Of Tokyo International Ltd v Wood
[1995] UKEAT 265_95_2106 · 1995-06-21
MR JUSTICE MUMMERY (PRESIDENT) The purpose of this application is to determine whether an appeal against an Interlocutory Order made under Rule 4(2)(a) of the Industrial Tribunal's Rules of Procedure 1993 for the attendance of two witnesses to give evidence at the hearing of a complaint of unfair dismissal and racial discrimination is within time and, if not, whether the time for appealing should be extended.The application is made in the following circumstances.(1) On 24th June 1993 Ms Helen Wood, a Senior Secretary, employed by the Bank of Tokyo International Ltd ("the Bank") until her employment terminated on 23rd April 1993, presented an Originating Application complaining of unfair dismissal and discrimination on the ground of race.(2) In a Notice of Appearance dated 30th July 1993, the Bank contested the claim. It denied that Ms Wood was dismissed and asserted that she had resigned from her employment by notice on 23rd April 1993. If, alternatively, Ms Wood was dismissed, it was denied that the dismissal was unfair. Racial discrimination was also denied.(3) By letter dated 14th October 1994 the solicitors then acting for Ms Wood (Steggles Palmer) wrote to the Regional Office of the Industrial Tribunals, London (South) requesting that witness summonses be issued to a number of individuals currently employed by the Bank, including Mr Kurachi and Mr Kaneko. The application was made under Rule 4(2) of Schedule 1 to the 1993 Rules of Procedure which provide -
"A Tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion - (a) require the attendance of any person, including a party, as a witness, wherever such person may be within Great Britain. ..."
It is also provided in subparagraph (5) that where such a requirement has been imposed under paragraph (2)
"(a) on a party in his absence; or (b) on a person other than a party,
that party or person may make an application to the Tribunal to vary or set aside the requirement by notice to the Secretary given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with; and the Secretary shall give notice of the application to each party or, where applicable, each party other than the party making the application."(4) By letter dated 17th October 1994 to the Regional Office the solicitors for the Bank (Clifford Chance) objected to witness orders being issued against Mr Kurachi and Mr Kaneko. They said:
"Mr Kurachi and Mr Kaneko are both Senior Executives within the Respondent, the former being the Managing Director for Europe, the latter the Managing Director for the Bank of Tokyo International Ltd. Neither of these two individuals were at any stage involved in the grievance raised by the applicant, its investigation or the conclusions reached. Accordingly, the Respondent does not believe that either of these two individuals can provide any useful relevant evidence which might assist the Tribunal to determine the outcome of this application. Moreover, both of these individuals have outstanding business commitments made many months in advance, which often take them out of the United Kingdom. We respectfully request that no witness order should be made in respect of those two individuals."
(5) On 7th December 1994 the hearing of the application for the witness orders took place at the Industrial Tribunal sitting at London (South). The hearing was attended by counsel on behalf of the Bank and counsel for Ms Wood.(6) By letter dated 19th December 1994 the solicitors for the parties were given confirmation of what was agreed and directed at the Interlocutory hearing on 7th December. A Direction was given that the hearing of the case be listed for three days, 3rd to 5th July 1995. As regards the witness orders the letter stated:
"After considerable discussion, the Chairman agreed to issue witness orders against Mr Kurachi and Mr Kaneko so that they may be called as witnesses for the applicant. The orders are attached herewith. Any application for either order to be revoked must be made in writing in the usual way."
The attached orders required the named persons to attend at the hearing of the case on 10 a.m. Monday 3rd July and at any postponed or adjourned hearing of the proceedings to give evidence. It was expressly pointed out in Note 2 of the Order that:
"The Tribunal has power to vary or set aside this order on the application of the person to whom it is directed but can only do so for good cause."
(7) On 24th January 1995 the Bank solicitors wrote to the Regional Secretary at London (South) saying that they had been instructed to appeal against the making of the witnesses orders and that they would be lodging a notice of appeal with the Employment Appeal Tribunal within the requisite time limit. The letter noted that they had not yet received a full record of the decision of 7th December nor full reasons for the granting of the witness orders from the Tribunal in accordance with Rule 10 of the 1993 Regulations. It was pointed out that the time for making an appeal from the decision of an Industrial Tribunal was 42 days from the date on which extended written reasons for the decision were sent to the appellant. The letter continued:
"Although your letter of 19th December 1994 does not provide extended written reasons for the decision to issue witness orders, we are nevertheless treating this letter as the proper record of the decision of the Chairman at the interlocutory hearing of 7th December 1994 for the purposes of submitting our appeal."
The letter concluded with a request for the provision of extended reasons for the decision so that the appeal could be fully argued. It was explained that they would be attaching a copy of the letter of 19th December 1994 to the Notice of Appeal, but also required a copy of the extended reasons for the decision pursuant to Rule 3(1) of the Employment Appeal Tribunal Rules 1993. A Notice of Appeal was to be submitted to the EAT on or before 30th January 1995.(8) On 26th January 1995 the Bank solicitors wrote to the Registrar of the Employment Appeal Tribunal lodging a Notice of Appeal from the decision of 7th December 1994 to issue the two witness orders. A Notice of Appeal was enclosed, together with a copy of the decision sent on 19th December 1994. It was noted that full written reasons for the decision to issue witness orders had been requested but not received and would be forwarded if and when they are forthcoming. Unfortunately, the Notice of Appeal was not sent to the current address of the Employment Appeal Tribunal at Audit House, 58 Victoria Embankment. It was sent to the address at 4 St James's Square, London SW1, from which the EAT moved over four years ago.(9) The circumstances in which this mistake occurred are explained in an Affidavit sworn by an assistant solicitor with the Bank's solicitors on 20th June 1995. He explains how he instructed a trainee solicitor to draft the Notice of Appeal and forward it to the EAT. It appears that the trainee solicitor concerned was not then aware of the address of the EAT. She used a copy of a booklet last updated in March 1992 which gave the St James's Square.(10) At about the end of February 1995 the assistant solicitor asked the trainee solicitor who had forwarded the Notice of Appeal whether any response had been received from the EAT. It was discovered that there had been no response. The trainee solicitor was instructed to enquire whether the notice of appeal had been received. The enquiry was made by telephone and it was confirmed by the EAT that there was no copy of the letter of 26th January or notice of appeal on the files. It was suggested that the solicitors send by Fax a copy of the letter and the Notice of Appeal for the EAT to consider.(11) On 3rd March 1995 a Notice of Appeal was received from the Bank's solicitors appealing against the decision of 7th December 1994 on the ground that the Tribunal erred in law in making the witness orders, as the Industrial Tribunal
"... failed to satisfy itself that the intended witnesses, Messrs Kaneko and Kurachi could, prima facie, give evidence which was relevant to the issues in dispute between the parties to these proceedings but in any event proceeded to issue witness orders against Messrs Kaneko and Kurachi."
(12) No further explanation of the reason for making the orders has been provided by the Industrial Tribunal, despite the request of 24th January.(13) No application has been made by the two persons named in the witness orders or by the Bank to vary or set aside either of the witness orders.

The legal position

Mr Swift, on behalf of the Bank, submitted that the appeal was not out of time because the time for lodging the appeal under Rule 3(2) of the Employment Appeal Rules 1993 had not started to run. That Rule provides:
"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the Industrial Tribunal was sent to the appellant ..."
In the present case the Industrial Tribunal had not provided any reasons, let alone extended reasons, for the order against which the appeal was brought. The only statement for the decision of the Tribunal was in the letter of 19th December. Unless extended reasons are forthcoming, there are difficulties in determining the appeal. Further, the Bank had pursued the challenge to the decision in a sensible and timely manner. The Notice of Appeal had been sent to the EAT on 26th January, albeit to the wrong address. The Appeal Tribunal should exercise its discretion under Rule 39 of the Employment Appeal Tribunal Rules to hear the Bank's appeal, even though time had not started to run under Rule 3(2).Alternatively, if the appeal was out of time, the Appeal Tribunal should, in all the circumstances, exercise its discretion under Rule 39 to extend the time for appealing.Mr Swift also made brief submissions as to the locus of the Bank to appeal against the witness orders made against the two named witnesses. He submitted that the Bank had locus to resist the application for witness orders and to appeal from the orders made: the Bank is the respondent to the claim; it would be prejudiced if witnesses unable to give relevant evidence are required to attend by the Tribunal and the hearing of the substantive application is unnecessarily extended; as both witnesses are employees of the Bank, the Bank is able to provide the Tribunal with information as to whether either of them could give relevant evidence, if required to do so; the Tribunal had asked the Bank for its comments on Ms Wood's application.Although neither Ms Wood nor the solicitors currently acting for her attended the hearing, written representations were made on Ms Wood's behalf in letters written on her behalf by her solicitors. In a letter of 19th May Messrs Fairbairn Morris referred to the Regulations which provide that an appeal must be lodged within a certain time. It is a strict requirement which the Bank failed to meet. The reason they did not meet it is because they sent the Notice of Appeal to the previous address of the Tribunal. That was negligence on the part of the Bank's solicitors. It was not a matter which could be relied on in arguing that the appeal was brought within time or that an extension should be granted. They also challenged the locus standi of the Bank to bring the appeal.

Conclusions

In my judgment, the Bank's appeal is out of time and I should not exercise my discretion to grant an extension. The reasons for this conclusion are as follows:-(1) The contention that the time for appealing has not begun to run against the Bank under Rule 3(2) of the Employment Appeal Tribunal Rules because no extended written reasons have yet been sent by the Industrial Tribunal to the Bank, is misconceived. There is no obligation under the Industrial Tribunals Rules of Procedure for the Tribunal to give extended reasons for interlocutory orders, such as an order for the attendance of witnesses. It is no doubt true that, in general, as a matter of good practice, parties should be told reasons why they have won or lost in an interlocutory decision as much as in a final decision, though not in as much detail ( Independent Research Services Ltd v. Catterall [1993] ICR 1 at p.5 C - D. The Industrial Tribunal Rules, however, only require reasons to be given for a "decision" of a Tribunal and it is provided in the definition of a "decision" in relation to a Tribunal that it "does not include any other interlocutory order or any other decision on an interlocutory matter": Rule 2(2). A consequence of that definition that an interlocutory order is effective at the time when it is given. It does not require registration to make it effective. In Kasella London Ltd v. Banai [1990] ICR 215 the Employment Appeal Tribunal held that under the Rules there is no need to register an interlocutory order, as opposed to a final decision. The only documents required to be entered in the register under Rule 10(5) are the documents referred to in paragraphs 10(2) and (3). Those paragraphs refer to the "decision" of a Tribunal. An interlocutory order is excluded from the definition of a "decision" in relation to a Tribunal.(2) If, as indicated, an interlocutory order is effective when it is made, without the need for subsequent registration, the time for appealing against it should run from the date when the order is made. In this case the hearing on whether such an order should be made took place on 7th December 1994. The order issued was dated 19th December 1994. In my view, the time for appealing under the Employment Appeal Tribunal Rules ran from that date. It follows that the service of the Notice of Appeal on 3rd March 1995 was out of time.(3) Mr Swift's argument that under Rule 3(2) time cannot begin to run until extended written reasons for the decision were sent to the Appellant is incorrect because no extended written reasons have to be given or can be required for the making of an interlocutory order. Rule 3(2) of the 1980 Employment Appeal Tribunal Rules does not apply where there is no obligation on the Industrial Tribunal to give or send extended written reasons.(4) This is not an appropriate case for the extension of time. As pointed out by Ms Wood's solicitors and emphasised in the recent decision of United Arab Emirates v. Abdelghafar [1995] IRLR 243 the time limit for appealing is strictly enforced. The Bank has complied with the obligation to provide an explanation for the default. That is contained in the Affidavit sworn by the solicitor acting on behalf of the Bank. The crucial question is whether that explanation provides a good excuse for the default and whether there are circumstances to justify the Appeal Tribunal taking the exceptional step of granting an extension of time. The reason why the Notice of Appeal was not served on the Employment Appeal Tribunal within the prescribed time was because it was sent to the wrong address. That is an error on the part of the Bank's solicitors which explains, but does not excuse, the failure to comply with the time limits. The misunderstanding about the effect of the Rules in relation to the time for appeals from interlocutory orders was not the cause of the Notice of Appeal being sent out of time. There are, in my view, no circumstances in this case which would justify extending the time for appealing.Finally, I add that this does not mean that the Bank or the two witnesses are without redress for what they consider to be an inappropriate order. As pointed out in the order, an application can be made to the Tribunal to vary or set aside the witness orders. This has not been done. I am not aware of any reason why it has not been done or cannot now be done.