London Borough Of Southwark v Savona [1996] UKEAT 1009_95_1302

EAT
London Borough Of Southwark v Savona
[1996] UKEAT 1009_95_1302 · 1996-02-13
MR JUSTICE MUMMERY (PRESIDENT): This is an application by the London Borough of Southwark to extend the time for serving a Notice of Appeal against the decision of the Industrial Tribunal held at London (South) on 26th and 27th June 1995.As appears from the extended reasons sent to the parties on 7th July 1995, the tribunal unanimously decided, on the application of Mrs Savona, to order the Council to give discovery and allow inspection of documents shown to the Industrial Tribunal relating to an inquiry of alleged child abuse by the applicant. That order was made in proceedings instituted by Mrs Savona on 26th November 1993. Further proceedings were instituted on 17th February 1994.The two sets of proceedings have been consolidated. It is alleged that the Council have discriminated against Mrs Savona by way of victimisation contrary to the Race Relations Act 1976 . There has not yet been a hearing on the merits. The case is still at the preparatory stage. The parties are in dispute about the scope of discovery and production of documents.The sole matter for decision today is that the Council, although dissatisfied with the order against them, failed to appeal within the time set by the Employment Appeal Tribunal Rules. Rule 3 provides that every appeal to the Appeal Tribunal shall be instituted by serving a Notice of Appeal within 42 days from the date on which the extended written reasons for the decision were sent to the appellant.The Notice of Appeal should have been submitted on or before 18th August 1995. It was not in fact signed and dated until 25th August 1995. It was not received in this tribunal until 29th August 1995. It was therefore necessary for the Council to make an application under the Rules for an extension of time. These applications are normally heard by the Registrar in the first instance on the basis of written submissions from the parties. Because there is an unusual point raised in this appeal, the matter has been listed directly before me, without any prior determination by the Registrar.Good arguments have been advanced by Mr Eduje, on behalf of the Council, and by Mr Ryder, on behalf of Mrs Savona.As this is an interlocutory application, the less I say about the merits of the case the better.It is common ground that the correct approach to an application to extend time is laid down in the recent case of United Arab Emirates v Abdelghafar [1995] ICR 65 . There is a discretion. In the exercise of that discretion I should first consider the explanation for the failure to comply with the time limits and then ask whether that is a good excuse for not complying with the time limits. If there is no good excuse I should consider whether there are exceptional circumstances in the case which make it appropriate to extend the time.The excuse of the Council in the letter of 25th August 1995 was in these terms:
"You will note that this appeal should have been submitted by Friday 18 August 1995. Regrettably we present it a week out of time. Accordingly we apply for an extension of time for appealing to today's date.
It is unfortunate that the delay was occasioned by our miscalculation of the due date for the submission of our appeal. It appears now that we had in fact overestimated the relevant date by a week. It was only upon preparing to submit the appeal to your offices to day, believing this to be the 42nd day, that we were put on notice and our attention brought to the oversight.It has to be conceded by us that this is not a worthy excuse for explaining our delay. Notwithstanding, it is an honest excuse. In further support of our application for an extension of time we rely primarily upon your discretion. ..."They rely on various factors relevant to the discretion. The appeal was only a week out of time. There would not be prejudice to the other side, as they were aware that the Council intended to appeal, as noted in the decision of the tribunal. The subject of the appeal raises a question of Public Interest Immunity, a matter of public interest, particularly to an employer in the position of a Local Authority. The issue was raised in an earlier Notice of Appeal submitted on 19th June 1995, but stayed by an order of 22nd June 1995.Mr Uduje elaborated on these points. His main emphasis has been on the special circumstances of this case. State immunity in the United Arab Emirates case was considered to be a matter of a special, exceptional or rare nature. So is the public interest immunity point in this case. The main part of the United Arab Emirates decision on which he relies is the final paragraph of the judgment. This is said in relation to State Immunity:
" The overriding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the State Immunity Act 1978. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings. If the tribunal in the original proceedings has not given effect to the immunity conferred by the Act, then it must be the duty of the appeal tribunal to give effect to it by correcting the error. The alleged error of the tribunal cannot be corrected in this case unless an extension of time to appeal is granted to the employers. The employers have shown that there is a reasonably arguable case that the industrial tribunal failed to apply the law of state immunity correctly. That makes this an exceptional case for an extension of time."
Just as Section 1(2) of the State Immunity Act 1978 imposes a duty on a court to give effect to the immunity, the position in relation to Public Interest Immunity is that there is a duty on the court to make sure that the point is taken, even though neither of the parties have taken it. There are a number of authorities. In the most recent Evans v Chief Constable of Surrey [1989] 2 AER 594 at 596, it is stated by Wood J that:
"... public interest immunity ... is an issue which, if the facts are disclosed on which it could arise, must be considered, if necessary, by the court itself."
That statement is supported by passages from two House of Lords cases cited by Mr Ryder. First, the case on Crown Privilege (as it was then called) in Duncan v Cammell Laird [1942] AC . At page 642 the Lord Chancellor said that the principle in question:
"is a rule on which the judge should, if necessary, insist, even though no objection is taken at all."
In the most important modern case on Public Interest Immunity, Conway v Rimmer [1968] AC in the speech of Lord Reid at 950, it is stated by him, in a general discussion about the nature of Public Interest Immunity that:
"it is the duty of the court to do this [ that is to prevent the disclosure of matters which in the national interest ought not to be disclosed ] without the intervention of any Minister if possible serious injury to the national interest is readily apparent."
What he says about the national interest applies also to the public interest, such as might exist in this case.The argument is that an extension of time should be granted because, as in the case of State Immunity, it is the duty of the court to see that the law relating to Public Interest Immunity is invoked where it should be, and where it is invoked, is correctly applied. Mr Eduje said that a reasonably arguable point is raised in the Notice of Appeal that the decision of the Industrial Tribunal on this point is legally erroneous. It is not necessary to examine the details of the tribunal's reasoning set out in paragraphs 16-21 of their decision. The crucial point is that the tribunal, having referred to the leading case of D v National Society for the Prevention of Cruelty to Children [1978] AC171 , gave an interpretation to the scope of the immunity recognised in that case which can reasonably be argued is over literal and too narrow. It is not for me to decide today whether the Industrial Tribunal correctly decided the scope of the immunity or incorrectly decided it. I am not deciding the appeal. I am only deciding whether time should be extended so that there can be an appeal on this question.Mr Eduje's argument is that if I do not grant an extension of time there may be an erroneous ruling on Public Interest Immunity which will remain uncorrected because his appeal is out of time. In the circumstances it is the duty of this tribunal, if the Industrial Tribunal has failed to interpret the law correctly, to see that the error is corrected and that Public Interest Immunity is properly applied.The appeal is opposed. In a helpful argument Mr Ryder highlighted several considerations to persuade me not to grant an extension. He emphasised the rare and exceptional nature of cases in which an extension is granted. It is not sufficient to say that a point is of public importance. It is not sufficient to say that the respondent to appeal will not be prejudiced by an extension. It is not conclusive that there is only a relatively short period between the time expiring and the application being made for an extension. The merits of the appeal are usually of little weight, because on an application for extension one is not deciding the appeal. One is simply deciding whether, in all the circumstances, an appellant who has failed to comply with clear rules should be allowed to argue the case.On the exercise of discretion, Mr Ryder emphasised this point; that the Council had not given an explanation as to why they waited until the last moment in which to submit an appeal. He reminded me of what was said in the United Arab Emirates case at page 72, that parties:
"are ... strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail."
The Council had no good excuse for failing to comply with the time limits.The other point is that the tribunal considered the matter after a day and a half of legal argument. It was not sufficient to justify an extension that there was an issue of public interest involved. He distinguished the case of United Arab Emirates on a number of grounds. The rule of State Immunity is one that is absolute in most cases, for good reasons of international comity of nations. The rule of Public Interest Immunity, on the other hand, does not have an absolute effect. It is not enough to establish Public Interest Immunity simply to claim it. The court or tribunal has to decide on the scope of the claim; whether the ground on which Public Interest Immunity claimed is correct or not; and even if it finds that the case falls within the scope of the doctrine, it then has to carry out the balancing exercise which may involve two or more competing public interests. He argued that there had in fact been submission to the Industrial Tribunal about the balancing exercise, but it does not appear from the extended reasons that they embarked upon it. The tribunal seems to have decided that the documents should be ordered to be produced because they fell outside the scope of the immunity recognised in the NSPCC case.I have come to the conclusion after considering these and other more detailed arguments in the skeleton arguments, that I should grant the extension. The basis on which I do so is this.(1) I accept the explanation given for the failure to comply with the limits.(2) The explanation does not amount to a good excuse for failure to comply with the limits.(3) In the exercise of my discretion, I attach importance to the fact that this is an interlocutory order relating to the production and inspection of documents. In such cases, as indicated in the United Arab Emirates case, the tribunal is more ready to grant an extension than in cases where there has been a final decision on the merits after the hearing of evidence, finding of facts and rulings of law.(4) There are exceptional circumstances which, though not on all fours with the United Arab Emirates case, show that the point raised is out of the usual run. Public Interest Immunity rarely arises in Industrial Tribunals. It has arisen in this case in a difficult and sensitive area. It would, in my view, be unfortunate if the ruling made by the Industrial Tribunal is incorrect, but cannot be corrected because of a clerical failure to calculate the time for appealing correctly.(5) The point is reasonably arguable. I have read the decision, though I have not heard any legal argument on it. There is a basis for an argument that the tribunal interpreted the doctrine too narrowly. That argument may succeed at the full hearing. It may fail. But I am satisfied that it is an argument that ought to be fully explored.It is for those reasons that I find that this is a case where I shall grant an extension of time. There are, however, three further matters which I should mention before leaving this case.First, the parties ought to give consideration to possible ways of avoiding conflict on the point of principle. In my experience, it is possible in these cases to find a way of avoiding what may be a prolonged battle on an issue that may not be necessary to decide. Many problems of this kind are brought about by the person seeking documents asking for more documents than are needed, and, on the other side, by a too ready refusal to give any documents. If both parties apply their minds to what is really needed and what could be properly provided a way might be found of avoiding prolonged and costly procedural wrangles and appeals.Secondly, it is important that this appeal should be heard as soon as possible. It is an interlocutory appeal, it would normally come into the fast track. Special arrangements can be made for this to be heard as soon as possible. It would save time in the long run, if this matter were reserved to a tribunal hearing over which I presided, sitting of course with two lay members, to hear the substantive arguments. If anybody objects to that the matter may be put before a different chairman and two lay members.Thirdly, as I pointed out to Mr Uduje, this is only the first step in what may be a drawn out wrangle. I granted him an extension. That does not mean to say he will win the appeal. If the appeal is dismissed, then the parties can get on with the case. But if the appeal is allowed this does not strike me as a case where this tribunal would be in a position to itself make a ruling on the question of Public Interest Immunity. All it would decide is whether the tribunal had correctly determined and applied the scope of the immunity. If that were the position on the appeal, then the almost certain consequence of allowing the appeal would be to remit it to the Industrial Tribunal to apply the Public Interest Immunity doctrine, as interpreted by this tribunal. That would involve them then in a balancing exercise. I would not wish to see yet another appeal by either side on the result of that balancing exercise. All of these matters ultimately put off the important day, the day of the decision on the merits of the case. It is not for me to decide how far this case can be argued and decided without these documents. But I would urge the parties to give fresh consideration to whether it is possible in this case to find a way of bringing this matter to a hearing on the merits without further disputes about what documents are obtainable for use at the hearing.For all those reasons I grant the extension of time. The time for appealing is extended until the date when this Notice of Appeal was received in the Tribunal, 29th August 1995.Appeals 1009/95 and 606/95 are to be listed together.Twenty one days before the hearing date skeleton arguments are to be exchanged and lodged with this tribunal.Following the grant of the extension of time, Mr Ryder made two applications on behalf of Mrs Savona. The first is unopposed. That is there should be a Legal Aid taxation of her costs. The second is that the costs of this appeal should be paid by the Council. This tribunal has power to order costs and expenses where it appears to it that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings. If those circumstances apply the tribunal may order the party at fault to pay the other party the whole or such part of the costs it thinks fit. Mr Ryder submitted that we should order costs against the Council to be taxed, if not agreed. He is unable to put a figure on the costs incurred today.In my judgment, this is a case which falls within Rule 34. I should exercise the discretion to order costs. There has been unreasonable delay on the part of the Council in bringing this appeal. Although they had already decided to appeal at the time when the Industrial Tribunal gave its decision, they did not appeal within the generous period of 42 days allowed by the rules. Their explanation for not complying with the time limits is not a good excuse for failure to observe the time limits.The decision in the United Arab Emirates case last year was an attempt by this tribunal to warn prospective appellants about the importance of complying with the rules. There was delay in serving the notice of appeal in time. It was unreasonable, because there is no good excuse for it. The result has been that there will be two hearings in relation to this appeal. In the general run of appeals where appellants bring their cases in time, there is only one hearing. It is the Council's conduct that has led to the expenditure of costs and expenses by the respondent for which they must pay. If no agreement can be reached about the sum that should be paid, I will order a taxation by the Taxing Officer.