Lodowski v Mease [1995] UKEAT 531_94_2203

EAT
Lodowski v Mease
[1995] UKEAT 531_94_2203 · 1995-03-22
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Lodowski against the order, made by the Registrar of this Tribunal on 22 September 1994. By that order the Registrar, after considering representations and submissions in the correspondence, refused to grant to Mr Lodowski an extension of time in which to lodge an appeal. When he was notified of that, Mr Lodowski informed the Registrar, in a letter faxed on 30 September 1994 that he wished to appeal against the refusal of extension of time. This is the hearing of that appeal. At the hearing this morning, Mr Lodowski has represented himself. The Respondent, Mr McCrudden, has represented himself.Under the rules for appealing in The Employment Appeal Tribunal Rules , Rule 3 provides that a Notice of Appeal must be served on the Appeal Tribunal within 42 days from the date on which the extended written reasons for the decision were sent to the Appellant. There is power to extend the time, but that power is only exercised in rare and exceptional cases; where the Appellant produces a good excuse for not appealing within the 42 day period. In order to see whether an extension should be granted in this case, it is necessary first to look at the dates on which the relevant events occurred and then see whether Mr Lodowski has produced a good excuse for not appealing in time.The case of Mr McCrudden started as long ago as the 4 January 1993. On that date, he presented an application to the Industrial Tribunal. His complaint was non-payment of wages for November and December. He claimed that he was employed as a night baker by Mr Lodowski. His employment had begun in March 1990 or thereabouts and that he was still working for him. His complaint was quite simply this: payment for September extremely late due to cheque bouncing. October's wages not paid until last week of November. November and December are still outstanding. "At the time of writing, he owes me about £1,800. This is causing great difficulty in paying bills and getting shopping. I have got two small children to look after. Why should they have to suffer, because he cannot pay us, what do I do." That was the complaint. There were similar complaints by other employees. I am not concerned with those. The only appeal in this case concerns Mr McCrudden. His complaint was heard by the Industrial Tribunal held at Reading on 18 June 1993, when Mr McCrudden appeared in person. Mr Lodowski did not appear and he was not represented. The other employees' cases were heard at the same time.The Tribunal unanimously decided that the application by Mr McCrudden and the other Applicants under the Wages Act , succeeded. In the Full Reasons for the decision, which were sent out to the parties on 1 July 1993, the Tribunal said this of Mr Lodowski:
"The Respondent, Mr Peter Lodowski, did not enter an appearance and was not represented at the hearing. He was in business as a baker at Brize Norton, Oxfordshire."
It is then stated what the position of the various employers was. Mr McCrudden was described as a night baker. It referred to wages being in arrears, by reason of non- payment or through cheques for wages failing to clear. Mr Lodowski told the Applicants there would be a fortnight's holiday over the Christmas period; but after that time the bakery never reopened. They received no notice. It was only when Miss Mease (one of the other employees) found out on 22 January 1993 that he was trading elsewhere, that they regarded themselves as dismissed.The Tribunal decided the case of each separate employee. As regards Mr McCrudden's claim, they said this:
"Mr McCrudden claimed pay for the months of November and December 1992 and for three weeks in January 1993 at £890.57 per month. The resulting award which we award to him under the provisions of the Wages Act is £2,402.47."
"All the foregoing sums are payable by Mr Lodowski. If he is unable or unwilling to make payment in accordance with our awards, they may be enforced through the County Court."
They referred to the fact that Mr McCrudden sought to amend the claims to add a claim for redundancy. Leave was granted to make the amendment. It appears from a later decision of the Tribunal that the application against Mr Lodowski for redundancy payments was dismissed. The decision on that was sent to the parties on 27 October 1993. The explanation for that appears to be that Mr McCrudden and the other individual employees were originally employed by a company, which went into liquidation on 28 October 1992. Mr Lodowski continued to carry on the business in November and December and became the employer of the individuals. But any liability for redundancy was that of the company. If the company became insolvent, as it did, it would become the liability of the Redundancy Payments Service at the Department of Employment.The appeal against the decision in Mr McCrudden's favour was not served on this Tribunal until 1 June 1994, many months after the decision of the Industrial Tribunal in Reading the previous June had been sent out to the parties. Mr Lodowski signed and dated the Notice of Appeal and said in the grounds:
"Mr D McCrudden was employed by the Straw Hat Limited (the Company that has gone into liquidation). A copy of his Contract of Employment is held by the Official Receiver (the Official Receiver will be dealing with the affairs of the Company on its liquidation). By law I cannot be held responsible for the debts of the company."
The first difficulty that Mr Lodowski faces with that Notice of Appeal is that it is out of time. What excuse has he for it being out of time? His excuse is that he did not know anything about the proceedings in the Industrial Tribunal. We have in the papers copies of letters sent by the Reading Office of Industrial Tribunals to Mr Lodowski on 26 February 1993. The address of each of those letters, including the claim made by Mr McCrudden, is "The Blessings", Minster Lovell, Witney, Oxfordshire. Those were sent by Recorded Delivery.Mr Lodowski's explanation for not appealing earlier was that he did not know about the proceedings in the Industrial Tribunal at Reading. He never received the copies of the papers. The reason he did not receive them was that earlier in February 1993, following matrimonial disagreements, he moved out of the "The Blessings" at Minster Lovell. His wife remained living there, but he went to live where he says he still lives, 179 Iffley Road, Oxford. He says he had to move out. He asked the Post Office to redirect mail, but he never received these papers. The first that he knew of Mr McCrudden's claim was when he got a letter on 23 November 1993. That letter was sent by Mr McCrudden's solicitors. This letter and Mr Lodowski's reply to it are important. In the letter of 23 November, Mr McCrudden's solicitors, Henmans, said they had been consulted by him in respect of the outstanding award of the Reading Industrial Tribunal, dated 1 July 1993, in the sum of £2,402.47. They enclosed with the letter a copy of the order made by the Oxford County Court for the recovery of that sum. That refers to the award made on 1 July 1993. It refers to an Affidavit of Mr McCrudden, filed with the County Court, and it clearly contains an order that Mr Lodowski pays the sum awarded. The letter informed him that, unless the total sum ordered including costs was paid before 29 November, a statutory demand would be served upon him, which would in turn lead to the issue of bankruptcy proceedings as the judgment was unsatisfied.Mr Lodowski answered that letter. His answer has the same date as Henmans letter [23 November] and he gives his address as 179 Iffley Road. He gives the Case Reference No. and says:
"I have just received the order for recovery.
As you can see my new address is as above you in future make sure all corrspondense go to address.Your Mr White in your Insolvence Dept has my details re Jan 1993.Have no money live in rented room and this must be my 10th Order. This is all on Court and Bailiff. Please check."He says in a post script:
"that he has a form from the Government and Tribunals to say that they have made a claim and it has been awarded. See you in Court."
It is significant, in my judgment, that in that letter Mr Lodowski says nothing about being unaware of the proceedings against him in the Reading Industrial Tribunal. He does not give any details of any grounds on which he disputes his liability to make the payment of the sum in the judgment. He says he has not got any money. That is about all that he said. More significantly, although he must have been aware by the end of November that there was a substantial judgment against him, based upon an award by the Reading Industrial Tribunal in favour of Mr McCrudden, the Notice of Appeal still was not served. When I questioned Mr Lodowski about this, his explanation for no Notice of Appeal being served was that he went to the Citizens Advice Bureau and he was told that he could not appeal because he was out of time. He said he could not afford to take legal advice. He did consult some solicitors later. He got an award of legal aid to deal with the application for extension of time and to deal with the bankruptcy petition, served on him at the end of May 1994. He said he went to solicitors in Oxford and they have his documents. He informed me that he obtained legal aid for the purposes of dealing with the bankruptcy petition and also dealing with the application to extend the time for appealing. When he failed in that application before the Registrar, the Legal Aid Certificate ceased to apply. That explains why he has done the case himself this morning, rather than be legally represented. He also says that he disputes his liability to pay the sum that he has been ordered to pay Mr McCrudden. The essence of his defence is that what Mr McCrudden was claiming was owed by the Company for October. He [Mr Lodowski] could not be personally liable for what the Company had failed to pay. He said that what was claimed for the period after the Company went into liquidation was not owing from him. He had paid Mr McCrudden for November. He paid him £500 or so on 18 December for two weeks. Mr McCrudden left the employment. There is no money owing by him to Mr McCrudden.That is the basis upon which Mr Lodowski says he should be able to appeal out of time. He was unaware of the proceedings in the Reading Tribunal. He was told he could not appeal by the CAB. He was not able to afford legal advice. The first thing that he did when he got legal advice on the bankruptcy petition was to put in the Notice of Appeal on 1 June. He says he has got a defence to the claim. He does not owe the money. The Company owes it.Mr McCrudden has explained that he worked until Christmas Eve 1993 for Mr Lodowski. The last pay slip he got from the Company was at the beginning of November. He says he was not paid for November or December or for any period in January 1993. He made various other allegations against Mr Lodowski, in relation to matters of post; of the way he was treated; and of the tax affairs of the employees. I need not go into those. All I am concerned with this morning is whether I should reverse the order of the Registrar, who refused to extend the time for appealing. I have decided I should not reverse the order of the Registrar. In my view, on the information before her and now before me, it was correct to refuse an extension. The reason is this: in my view, Mr Lodowski has not produced a satisfactory excuse for serving a Notice of Appeal as late as 1 June 1994, against a decision made in the Reading Industrial Tribunal on 18 June 1993 and notified on 1 July 1993.It is clear from the letters that I have read that by the end of November 1993, Mr Lodowski knew that Mr McCrudden had succeeded in getting a substantial award in his favour in the Reading Industrial Tribunal. The letter he wrote shows that that letter from Mr McCrudden's solicitors had not failed to reach him. He dealt with it in the letter. He did not seek to say anything about being unaware of the proceedings. More important, he did not bring a Notice of Appeal until many months later. I am not satisfied that the explanations about advice from the Citizens Advice Bureau, or the solicitors, excuse him for not bringing an appeal to this Tribunal. It does not cost very much to lodge a Notice of Appeal. It is simply a question of filling in a one-page form and sending it to this Tribunal.If it is necessary to obtain legal advice, that can be done after the Notice of Appeal has been lodged. There is no excuse for this Notice of Appeal being so far out of time. In those circumstances, I shall dismiss the appeal. As an additional point, I would say this: Mr Lodowski has not produced any documents this morning to support his contentions that he has a defence to the claim. He says the documents are with his solicitor. He suggested that there was some difficulty in getting documents from his solicitor. From what Mr Lodowski has told me, he would not succeed on an appeal, even if it was in time, because this Tribunal can only hear appeals on points of law. The disputes which Mr Lodowski wishes to raise concern points of fact. If he wishes to pursue those, an appeal is not the right way to do it. The correct way is to go back to the Industrial Tribunal, and ask them for a review of the earlier decision making the award in Mr McCrudden's favour. A review can be ordered by a Tribunal on a number of grounds, including the ground that a party did not receive notice of the proceedings that led to the decision. That is Rule 11(1)(b). Mr Lodowski would be entitled to make an application, even if he had not put in a Notice of Appearance to the case. That is covered by Rule 3(2)(c).I am not encouraging Mr Lodowski to make an application he may have similar difficulties to those he has had here. He is long out of time for making an application for a review of the decision. He can, however, attempt, if he wishes, to make an application by first asking the Industrial Tribunal to extend the time for reviewing the decision and then stating in detail the grounds on which he wants the decision reviewed providing the detailed documents and other evidence necessary to show that he might have a defence to these claims. At the moment I do not express any view about that, because he has not shown me any documents which would disclose a defence. The result of this hearing is that the appeal is dismissed. The time for appealing is not extended. In practice, this means that Mr Lodowski cannot appeal to this Tribunal against Mr McCludden's award.