Rogers v International Community School [1995] UKEAT 735_95_0111

EAT
Rogers v International Community School
[1995] UKEAT 735_95_0111 · 1995-11-01
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the order made by the Registrar of the Appeal Tribunal on 9 August 1995. She refused to grant an extension of time for appealing sought by the Appellant, Mr Rogers, in his proceedings against the International Community School. On 14 August Mr Rogers notified the Registrar that he wished to appeal against the refusal of the extension. On 21 August the Registrar informed Mr Rogers that his appeal would be set down for hearing before a judge. Mr Rogers has appeared in person. He has pressed his sense of grievance about the way in which he has been treated by his former employers, The International Community School; by the Industrial Tribunal in not awarding him any compensation for unfair dismissal, having found, on the admission of the School, that he had been unfairly dismissed; and by his solicitor, Mr Abrahamson of Silvermans, who failed to serve the Notice of Appeal against that decision in time.In my view, he is entitled to feel aggrieved in this matter. I have to administer justice according to the law. I can only grant an extension of time, on the practice and previous decisions of this Tribunal, if I am satisfied that there is a good excuse for this Notice of Appeal being out of time. I then can exercise a discretion in exceptional circumstances to extend the time for appealing. The rules are clear. Rule 3 of The Employment Appeal Tribunal Rules 1993 provides:
"(1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal... (a) a notice of appeal..."
It is provided in Rule 3(2) that:
"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 were sent to the appellant,..."
The dates in this case are clearly and helpfully set out by Mr Rogers in his chronology of events. He had a hearing before the Industrial Tribunal on 31 January this year. He said the hearing took 20 minutes. Unfair dismissal was admitted. A basic award was made in his favour, but no compensation was awarded to him. His complaint is that the Industrial Tribunal decision contains an error of law, in the reasons given for not awarding him compensation. The reasons given are in paragraph 11. The Tribunal says this:
"In determining whether Mr Rogers has taken adequate steps to mitigate his loss we have also taken account of his admitted lack of academic qualifications and of a teaching qualification and have come to the conclusion that Mr Rogers is unlikely to get a teaching post in the United Kingdom without both qualifications and a reference. But we have come to the conclusion that these deficiencies are not matters for which his employers are to blame and are not circumstances which have arisen due to their actions. We have therefore made a decision under the provisions of the Employment Protection (Consolidation) Act 1978 section 74(1) [which they set out]."
Their decision was that it is not appropriate for any compensatory award to be made. Mr Rogers was notified of the full reasons for the decision. The decision was sent out to the parties on 28 April 1995. The 42 days for appealing ran from that date. Mr Rogers received the decision on 5 May. On 25 May, he went to see a solicitor about an appeal. The solicitor was Mr Abrahamson, a partner in the firm of Silvermans in Barnet. Mr Rogers said that Mr Abrahamson was very enthusiastic about an appeal and found several legal grounds in the decision for bringing one. At the meeting on 25 May, Mr Rogers decided to put his entire case into Mr Abrahamson's hands.He took steps to obtain Legal Aid. He received a refusal of the Legal Aid application on 7 June. After that he tried every day to contact Mr Abrahamson, but he was busy in court on an important case. He finally spoke to Mr Abrahamson at 5.30 p.m. on 19 June. Mr Abrahamson informed him that he had sent a letter which he hoped would arrive next day and would help him to present his case. I have seen that letter, received by Mr Rogers on 20 June. On 20 June, Mr Rogers - by hand - served on the Appeal Tribunal, his Notice of Appeal. The problem was that by the time it was served on the Tribunal on 20 June, more than 42 days had passed from the sending out of the full reasons. The appeal was 10 days out of time. Mr Rogers said that the time should be extended for a number of reasons. First, that it is all his solicitor's fault, not his. He put the matter into the hands of Mr Abrahamson on 25 May. He thought that he would do all that was necessary for the prosecution of the appeal. On this point, I refer to the letter sent on Silvermans' notepaper by Mr Abrahamson, dated 19 June. Mr Abrahamson opens the letter by saying:
"I am sorry I have been unavailable for the last week or so. I have been engaged in a long-running case in the High Court."
He gives him advice about appealing against the refusal of Legal Aid and the necessity for completing the forms required, and said:"If you are confident that you can explain the grounds for appeal succinctly, you should ask for the appeal to be dealt with at a hearing."...He refers to what the area committee on appeal would want to know; not about the details of the case, but the basis on which an appeal was being brought from the Industrial Tribunal to the Appeal Tribunal. He outlined the grounds on which an appeal can be brought. Those are accurate and they are referred to as points of law which arise on the decision. There is no reference in Mr Abrahamson's letter to the time limits for bringing an appeal to the Appeal Tribunal, or to the fact that, by the date when he wrote that letter, the time limit for appealing had already expired. From what I have seen, it appears that this matter had been overlooked by Mr Abrahamson. No criticism can be made of Mr Rogers, since it is understandable that, if a lay-person puts a case in the hands of a solicitor, he would expect the solicitor to do all that was required to protect his position.Mr Rogers asks why should an extension be refused, when no blame is to be attached to him for the delay in bringing the appeal? It is all his solicitor's fault. He made it clear that he sees this as an important case on which he has spent a great deal of time. He did the case in person before the Industrial Tribunal. He says he has written about 30,000 words altogether in relation to a case which, in his view, had unpleasant origins in the conduct of the Respondent's School towards him. He says that there must be mistakes in the Industrial Tribunal decision. If unfair dismissal was found, how is it that he gets no compensation? He attacks, in particular, the reasoning of the Tribunal in paragraph 11, which I have already quoted.These arguments are given in greater detail in letters which Mr Rogers wrote to the Registrar when she was considering whether or not to grant an extension. They do not take the matter any further. In my judgement, it is not right for me to grant an extension of time. The exercise of the discretion to extend time is governed by the precedent and practice of this Tribunal. It is clearly laid down that there cannot be an extension of time, unless there is a good excuse for the delay. It has been held on numerous occasions, notably in the case of Duke v Prospect Training Services Ltd [1988] ICR 521 , that the default of a solicitor or other advisor in the performance of their duties does not provide their client with a good excuse for the delay. The case of Duke shows this in a striking context. In that case the solicitor for the Appellant was one day late in serving the Notice of Appeal. The solicitor put forward the excuse that he had been prevented by pressure of work from complying with the time limit. The E.A.T. held that that explanation did not constitute a proper excuse or be an exceptional circumstance for extending time.The Tribunal rejected the application for extension of time, even though, in that case, it was only one day late. Mr Justice Popplewell, the then President of this Tribunal, said the position is that there has to be some certainty, otherwise the conduct of litigation before this Appeal Tribunal cannot be controlled or properly exercised. That case has been followed in later cases. I am obliged by the requirements of consistency to follow it. The School had made it clear in correspondence that they object to an extension of time. Even if they did not object, I could not properly exercise the power to extend time. If I did so in this case, I would be acting inconsistently with previous practice and precedent. For those reasons (and with some sympathy for Mr Rogers) I dismiss the appeal.I add that Mr Rogers may be in a position to make a claim against Mr Abrahamson for failing to serve the Notice of Appeal in time. I do not know Mr Abrahamson's side of the story. From what I have seen from the documents and heard from Mr Rogers, it may be that the next step is for Mr Rogers to approach the firm of Silvermans and Mr Abrahamson, to ask them what they propose to do in relation to his appeal, now he finds that, through the delay, he is unable to pursue it. It would not be right for me to express a view about the liability of the solicitors. It is clearly something that should be further investigated and which Mr Rogers is entitled to take up with them. The order is that the appeal is dismissed. The extension of time is refused.