Ministry Of Defence v Kay [1995] UKEAT 945_94_2203

EAT
Ministry Of Defence v Kay
[1995] UKEAT 945_94_2203 · 1995-03-22
MR JUSTICE MUMMERY (PRESIDENT): On 24 October 1992, Mrs Katrina Kay presented an originating application to the Industrial Tribunal, claiming unfair dismissal and sex discrimination against the Ministry of Defence. Her complaint was that her service began in 1976 and ended on 2 April 1983, and that she had been dismissed by the Ministry of Defence because she was pregnant.The Industrial Tribunal at Leeds heard the case on 1 and 14 June 1994 and unanimously decided that the Ministry of Defence had discriminated against Mrs Kay, on the grounds of sex. That was admitted. The Ministry be ordered to pay her the sum of £110,000. An order for costs of £250 was also made. The extended reasons for the decision were sent to the parties on 18 July 1994. On 24 August 1994, the Employment Appeal Tribunal received Notice of Appeal by the Ministry of Defence. The appeal identified the Appellant, the decision appealed against and the Respondent, Mrs Kay, and had attached a copy of the Tribunal's extended reasons. Paragraph 6 of the Notice said:
"The ground upon which this appeal is brought are that the Industrial Tribunal erred in law in reaching the findings it reached:...."
On 2 September, the Registrar of the Appeal Tribunal referred to the Notice of Appeal and stated:
"The Registrar has directed that you enter further and better particulars of the Notice of Appeal within 28 days."
That direction was not complied with. No extension of time for complying with it was sought or granted. On 3 October 1994, the solicitors for Mrs Kay wrote to the Appeal Tribunal, referring to the letter of 2 September and stating that, following that, they had heard nothing at all from the Tribunal. They had received no Notice of Appeal and no further and better particulars. The letter went on:
"The end product is that the sum of £110,000 was ordered as long ago as the 14th June this year but the Leeds Industrial Tribunal has not been paid.
All in all, the position is most unsatisfactory and we should be obliged if you would do whatever is necessary to ensure that this matter is properly dealt with."In the reply of 12 October, the Registrar notified Mrs Kay's solicitors that the matter would be set down for a Preliminary Hearing. They were informed, that although Mrs Kay would not be heard on the Preliminary Hearing, they would be informed of the date of the hearing and of the outcome. On 29 November, the Appeal Tribunal informed The Treasury Solicitor that the Preliminary Hearing would take place on 16 December. At that time, no further and better particulars of the grounds of appeal had been received. On 8 December, the further and better particulars materialised. A letter was sent to the Appeal Tribunal enclosing the particulars, with an apology for delay in sending them. The particulars are dated 8 December. On 15 December, an urgent letter was sent by Mrs Kay's solicitors, saying that they had received the document described as the further and better particulars. They had referred the matter to Counsel, who advised that this was an attempt by the Ministry of Defence, to amend, alter or add to the Notice of Appeal and such a step required to be taken under an interlocutory application on notice. They stated:
"We certainly wish to oppose any application for leave to amend and we respectfully submit that the preliminary hearing tomorrow should not decide whether the MOD has leave to amend the Notice of Appeal in the terms suggested, since we have no right to attend the hearing or be heard.
Finally, Counsel advises us that the grounds of appeal as originally submitted by the Appellant discloses no error of law on the part of the Leeds Industrial Tribunal."On the next day, the Preliminary Hearing came before the Tribunal and the following order was made:
"THE TRIBUNAL ORDERS that the Appeal be adjourned in order for the Appellants to make formal application to amend the Notice of appeal such application to be made and the Respondents Solicitors put on Notice within 7 days of todays date hereof
THE TRIBUNAL FURTHER ORDERS that when the appeal is restored to the list it is to remain as a preliminary hearing"On 22 December, The Treasury Solicitor, acting for the Ministry of Defence, wrote a letter respectfully requesting leave to amend the Notice of Appeal dated 24 August 1994, pursuant to Rule 19 of the Tribunal Rules. The amended Notice of Appeal is set out in the schedule attached. The amended Notice of Appeal includes in it the further and better particulars, which had been produced for the first time on 8 December. On 18 January 1995, Mrs Kay's solicitors wrote to the Tribunal, requesting that their letter be treated as a Notice of Application on behalf of Mrs Kay, for an Order under Rule 26 of the 1993 Rules, debarring the Ministry of Defence from prosecuting their appeal, on the basis that they had failed to comply with the Order of the Tribunal dated 16 December. The grounds of the application were:1. The Industrial Tribunal decision at Leeds was made on the 14th June 1994, awarding £110,000 to Mrs Kay, with questions of pension and tax reserved. That decision was notified as already mentioned.2. On 24th August 1994, the Ministry lodged what they described as a Notice of Appeal, but it was submitted that it is clearly defective, in that the grounds of appeal failed to identify an error of law on the part of the Industrial Tribunal.Reference was then made to the direction of 2 September; to the late production of the further and better particulars; to the letter of 15 December, and to the order of 16 December, which I have already quoted.The submission, on the basis of those facts, is that, having regard to the lapse of 7 months since the order for compensation was made, and the failure of the Ministry of Defence to lodge a proper Notice of Appeal, or comply with the order of the Employment Appeal Tribunal, the Ministry of Defence should be debarred from pursuing the appeal. That application has been listed to come on with the application for leave to amend: both have been argued together. The Treasury Solicitor responded on 20 January, referring to the order of 16 December, invoking Rule 19 to explain why no notice of the application to amend had been served by The Treasury Solicitor on the solicitors for Mrs Kay. Rule 19(2) provides:
"On receipt of a notice under paragraph (1) of this rule, the Registrar shall serve a copy on every other party to the proceedings who appears to him to be concerned in the matter to which the notice relates and shall notify the applicant and every such party of the arrangements made by the Appeal Tribunal for disposing of the application."
It is argued that that rule entitled The Treasury Solicitor to assume that the Registrar would send the Notice of Application to amend; and that it would not be necessary for The Treasury Solicitor to write separately, giving notice of the application. The letter concludes with the request that the application for leave to amend be listed for hearing at the next convenient date: Mrs Kay would then have an opportunity to argue that she had been prejudiced by the late service of the amended Notice of Appeal.All these matters have been argued today by Mr Brown, on behalf of the Ministry of Defence and by Ms Beale on behalf of Mrs Kay. I have decided, having regard to what has happened in this case, and to the rules and practice of this Tribunal, that I should not grant leave to amend and that, at this Preliminary Hearing, the appeal should be dismissed. The reasons for this are as follows. First, the Notice of Appeal dated 24 August does not comply with the rules. The rules provide in Rule 3(1)(a) that a Notice of Appeal must be in, or substantially in accordance with, Form 1 or 2 of the Schedule. Form 1 provides in paragraph 6:
"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)."
It is clearly intended from the Rules that a Notice of Appeal must state the grounds of appeal, which are alleged to constitute errors of law in the decision appealed against. The rest of Rule 3 is consistent with this. It is provided in Rule 3(3),(4) and (5) that various steps can be taken by the Registrar to deal with Notices of Appeal, which are inadequate, or do not comply with the Rules. Rule 3(3) provides:
"Where it appears to the Registrar that the grounds of appeal stated in the notice of appeal do not give the Appeal Tribunal jurisdiction to entertain the appeal, he shall notify the appellant accordingly informing him of the reasons for the opinion and, subject to paragraphs (4) and (6) of this rule, no further action shall be taken on the appeal."
It was on the basis of that provision that the Registrar notified the Ministry of Defence on 2 September that further and better particulars were required.
"Where notification has been given under paragraph (3) of this rule, the appellant may serve a fresh notice of appeal within the time remaining under paragraph (2) [that is the remainder of the 42 day period, that had already expired] or within 28 days from the date on which the Registrar's notification was sent to him, whichever is the longer period."
That provision explains the period of 28 days allowed for compliance with the direction for further and better particulars. Paragraph 3(5):
"Where the appellant serves a fresh notice of appeal under paragraph (4) of this rule the Registrar shall consider such fresh notice of appeal with regard to jurisdiction as though it were an original notice of appeal lodged pursuant to paragraphs (1) and (2) of this rule.
The Ministry of Defence failed to serve the further and better particulars within the time stated; in fact, not until a long time afterwards. They did not serve a fresh Notice of Appeal, with a request for extension of time.The effect of these provisions is well-known. In the Employment Appeal Practice Direction, there are more detailed provisions. That was issued in 1981.

(a) and (b):

"Subject to Rule 3(2) of the Rules, [that is referring to 3(2) of the 1980 Rules, now 3(3) of the 1993 Rules] if it appears to the registrar that a Notice of Appeal... gives insufficient particulars or lacks clarity either as to the question of law or the grounds of an appeal, the registrar may postpone his direction under that Rule pending amplification or clarification of the Notice of Appeal, as regards the question of law or grounds of appeal, by the intended appellant."
That amplifies the provisions under which the Registrar sent the letter of 2 September.

(b) is also important:

"An appellant will not ordinarily be allowed to contend that "the decision was contrary to the evidence," or that "there was no evidence to support the decision," or to advance similar contentions, unless full and sufficient particulars identifying the particular matters relied upon have been supplied to the Appeal Tribunal"
and 5(c) says:
"It will not be open to the parties to reserve a right to amend, alter or add to any pleading. Any such right is not inherent and may only be exercised if permitted by order for which an interlocutory application should be made as soon as the need for alteration is known."
In the Encylopaedia of Industrial Relations and Employment Law it is explained in paragraph 1461, dealing with general grounds of appeal:
"When drafting the grounds of appeal the appellant should be careful to give sufficient particulars of any general ground upon which he relies, such as `the decision was contrary to the evidence' or `there was no evidence to support the decision', because failure to supply full and sufficient particulars identifying the particular matters relied on will ordinarily result in the EAT refusing to allow him to argue that ground at the hearing.
In my judgement, the position is that this is an application for leave to amend in name only. In substance, it is an application to bring forward, for the first time, a Notice of Appeal in a proper form. The Notice of Appeal, in its present form, could not possibly be argued, since no grounds are identified. It is bound to fail. It is not a case of an amendment seeking to add to, or delete, grounds which have been put in a properly drafted Notice of Appeal. The effect of what the Appellants are trying to do is to extend, unilaterally, the time for bringing an appeal. In this case, the time for bringing an appeal started to run from the date when the extended reasons were notified on 18 July last year. There is still no properly constituted Notice of Appeal in existence, many months after the expiration of the 42 days. Here we are, as Ms Beale pointed out, 9 months after the decision in Mrs Kay's favour, still without a properly constituted form of appeal. That is the reason behind the application for leave to amend.Using the analogy of the cases on when a person is allowed to present an appeal after the expiration of time, there is no excuse for what has happened in this case. The position on applications to extend time for appealing is well established in such cases as Duke v Prospect Training Services Ltd [1988] ICR 521 and Martin [1989] ICR24. The position is that an extension of time for bringing a Notice of Appeal will only be granted in rare and exceptional circumstances on provision to the Tribunal of a satisfactory excuse for not putting in a proper Notice of Appeal in time. What is the excuse of the Ministry of Defence for not putting in a properly specified set of grounds for appeal in time? There is no evidence before the Tribunal to explain the situation. Mr Brown gave me explanations on instructions, which he said could not be improved upon in an Affidavit. The explanation was that there had been an oversight of this case in circumstances where the Ministry of Defence is inundated with thousands of cases brought by persons in the same position as Mrs Kay. This has placed strains on the administration staff responsible for processing these matters. I am afraid that is not a satisfactory explanation. I am not saying that the fault is of any particular individual; least of all the individuals involved in this case. If there are insufficient staff to process the matter, the responsibility is with those who make the decisions as to what staff are engaged. They must take the consequences of inadequate staff to do work needed to be done.The position is that there was no oversight of the need to put in a Notice of Appeal. That explains the document of 24 August. If there were problems in complying with the rules in a proper Notice of Appeal, the proper course would have been first to write to the Respondents, seeking agreement to an extension of time, and explaining the difficulties. If the Respondents were not agreeable to an extension, the proper course would have been to make an application to the Registrar to extend the time; similarly with any difficulties that might have existed (and I understand they were the same difficulties) relating to the drafting of the original Notice of Appeal and in complying with the direction of 2 September. A direction of this Tribunal has the same status as a direction of the highest court in the land. It is meant to be observed. If there are difficulties in observing it, the proper course is to seek an extension of time of sufficient length to enable compliance with it. That was not done. No explanation was given. The most that was done, when the document was sent in as further and better particulars on 8 December, was to proffer apologies. But no explanation.In my view, the explanation does not amount to an excuse. Using the analogy of applications for extensions of time, this is not a case, in my view, for granting leave to amend. I would add this: that if this application were acceded to, it would have serious consequences for the conduct of efficient business in this Tribunal. If the Ministry of Defence were allowed in this case to put in what has been called by Mr Brown, a "holding Notice of Appeal", and come along a month later with an application to amend so as to spell out for the first time what the grounds were, it would be open to every other Appellant to do the same. The effect would be to put back, by many months, the effective start of the appeal process in this Tribunal. There are already serious delays in the hearing of appeals. They were over 2 years, this time last year. They are now just over one year. That is still twice as long as the time necessary for disposing of an appeal. If this course were pursued in this case and other cases, we should be back to the position where litigants had to wait for over 2 years for appeals to be heard. It would be an intolerable position. I shall not encourage it by acceding to this application for leave to amend.Mr Brown made the point that there would be no prejudice to the Respondent in granting the application for leave to amend. That is a common argument in applications for leave to amend. It is said that any prejudice there is can be compensated by costs. In this case, any delay in the payment of compensation should be covered by interest added to it. That is a short-sighted and narrow view of prejudice. There is other prejudice in delay in litigation; the prolongation of uncertainty; stress to the parties who have been involved in the case; and in this case, being kept out of the money, to which Mrs Kay is prima facie entitled by virtue of the order of the Industrial Tribunal, for a longer period than is justifiable. In my view, there would be prejudice in allowing the course which has been pursued here, of putting in a Notice of Appeal that says nothing, then allowing, many months later, the grounds to be spelt out.I have heard some argument on the merits. I have not encouraged it, because, in my view, it is possible to decide this application without deciding whether the appeal has merits. I make this decision on the assumption that there are some merits in the appeal. I have looked at the grounds of appeal; some of them are almost certainly bound to fail, because they are attempts to re-argue the case on the evidence. Others are more arguable. I am deciding this appeal on the basis that there may be some ground of appeal, but the way in which this appeal has been conducted, in my view, means that it should not be allowed to continue. The order I shall make for all those reasons is that leave to amend is refused. That leaves Mr Brown with an appeal that discloses no grounds. It is therefore unarguable. I therefore dismiss the appeal.

MINISTRY OF DEFENCE v MRS K M KAY EAT/945/94

COSTS

Following the decision, an application has been made on behalf of Mrs Kay for her costs of the appeal. There is jurisdiction to order costs to be paid where it appears to the Tribunal that the proceedings were improper, or unnecessary, or vexatious, or where there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings. In such a case, the Tribunal may order the party at fault, to pay the other party the whole, or such part as it thinks fit, of the costs or expenses incurred by that other party in connection with the proceedings.This power is not commonly exercised. That does not mean that it is not exercised in proper cases. In my view, this is a proper case for exercising the power to dismiss this appeal with an order that the Appellants pay the Respondent's costs. In my view, the conduct of the Ministry of Defence in this appeal, was unreasonable in a number of ways. It was unreasonable to put in a Notice of Appeal without specifying the grounds. It was unreasonable to ignore or fail to comply with the direction of the Registrar to put in further and better particulars within 28 days of 2 September. It was unreasonable to bring forward those further and better particulars at a late stage on 8 December. It was unreasonable for them to leave the Respondent and this Tribunal, without any explanation, either in a letter or in an Affidavit, of the reason for conducting the appeal in this way. In my view, the effect of this way of conducting an appeal, is to obtain, either directly or indirectly, a unilateral extension of time for bringing forward to the Tribunal and to the Respondent, stated grounds identifying errors of law in the decision under appeal.For the reasons explained in the judgment, it is incumbent upon every appellant to bring forward in his Notice of Appeal, or in compliance with the directions of the Tribunal, those grounds of law upon which he is seeking to attack the decision of the Tribunal. If this method of conducting appeals is allowed, an appellant will be able, without the agreement of the Tribunal, and to the prejudice of the Respondent, to delay by months the identification of those crucial points, relevant to the argument of the appeal. If that is allowed, it will be more difficult for this Tribunal to deal with the many cases of hopeless, or doubtful, grounds, advanced by appellants in order to obtain tactical advantages in their disputes with respondents. I say nothing about the intentions of the Ministry in this case. I am simply saying that the effect of the course they have adopted is prejudicial to the Respondent and to the proper workings of this Tribunal. That is unreasonable conduct. They will be ordered to pay the costs, to be taxed by the Taxing Officer.