Bartholomew v London Borough Of Hackney [1996] UKEAT 1023_95_2307

EAT
Bartholomew v London Borough Of Hackney
[1996] UKEAT 1023_95_2307 · 1996-07-23
MR JUSTICE MUMMERY (PRESIDENT): On 16 April 1996 the Registrar refused an application made by Mr Bartholomew for an extension of time in which to enter a Notice of Appeal. After considering representations in letters from Mr Bartholomew and from the Respondents, the London Borough of Hackney, the Registrar decided not to grant an extension. After receiving the decision, Mr Bartholomew informed the Registrar that he wished to appeal against her decision.At the hearing today, Mr Bartholomew has appeared in person. The London Borough of Hackney have written to the Tribunal stating that they stand by the arguments set out in a letter dated 20 March 1996. That letter was written to the Registrar in relation to Mr Bartholomew's application for an extension of time. The letter goes on to say that this appeal is vexatious, and they do not propose to attend the hearing today.Mr Bartholomew has helpfully clarified a matter which has become confused during the course of this case. The background to the case is that Mr Bartholomew, who was the head of the Race Equality Unit at Hackney, started a case of race discrimination and unfair dismissal. He served an Originating Application on the Tribunal on 17 May 1994. There was a decision by the Industrial Tribunal, after a hearing on 23 and 24 November 1994, that the Tribunal had no jurisdiction to hear two cases brought by Mr Bartholomew. The reason they held that they had no jurisdiction was that Mr Bartholomew had, on 11 March 1994, entered into an agreement through ACAS. That that agreement was signed on his behalf by a trade union representative, and on the Council's behalf by a solicitor from the Legal Department.It is unnecessary to examine the Extended Reasons for that decision, sent to the parties on 15 December 1994. There was no appeal against that decision at that time or within the forty-two days, which, under the provisions of Rule 3 of the Employment Appeal Tribunal Rules 1993 , started to run from 15 December 1994. No Notice of Appeal was received in this Tribunal until 29 August 1995. In that Notice of Appeal it is stated that one of the decisions appealed against by Mr Bartholomew is the decision of the Industrial Tribunal just referred to. That appeal is long out of time. The Tribunal's calculation is that it is 258 days late.After discussion with Mr Bartholomew, he accepted, first, that he is long out of time for appealing the substantive decision explained in the Extended Reasons of 15 December 1994, and secondly the difficulties in appealing against that decision. The provisions of the Employment Protection (Consolidation) Act 1978 make it clear that appeals can only be brought from such decisions on points of law. Mr Bartholomew accepts that what he is seeking to bring forward is not a point of law, but new evidence, which he says was not reasonably available for use at the original hearing and was not reasonably foreseeable as coming into existence. For those reasons, Mr Bartholomew does not wish to pursue the claim that he should have an extension of time for appealing against the decision of 1994.That leaves the second appeal. The Notice of Appeal, served on 29 August 1995, seeks to appeal against the refusal of the Chairman of the original Industrial Tribunal to grant a review of the Industrial Tribunal decision. The decision which he wishes to appeal against was contained in a letter of 4 August 1995. A letter dated 4 August 1995 sent by the Industrial Tribunal at London (North) to Mr Bartholomew says this:
"Mrs B A Calvert QC has asked me to thank you for your letter of 22 July and to explain that as she refused your application for a Review by letter dated 15 February 1995 she has no power under the rules to Review that decision.
Your only remedy would be to appeal her decision to refuse your application to the Employment Appeal Tribunals.

Mrs Calvert suggests you seek legal advice."

The earlier letter of 15 February, mentioned in the letter of 4 August, says that Mr Bartholomew's application for a review under Rule 11 of the Industrial Tribunal Rules was refused, because there were no grounds which fell within Rule 11 and the application had no reasonable prospect of success. Mr Bartholomew is not attempting to appeal against that decision refusing a review. He accepts that, at the time when he made that application, he did not have the new evidence which he put before the Tribunal in his letter of 11 July 1995. His point is this: that the Industrial Chairman has misunderstood the position in the letter of 4 August. It was not correct, he says, simply to refuse his application on the grounds that it was a renewal of an application already refused. He was making a new application based on new evidence, summarised in his letter of 11 July 1995. He submits that that application for a review does come within Regulation 11 of the Industrial Tribunal Rules , in particular 11(1)(d) which provides that a review of a decision may be made on the grounds that:
"new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing;"
The only appeal which he is now seeking to bring is against that decision refusing the review on 4 August 1995. His Notice of Appeal, served on 29 August 1995, was in time and he does not need an extension.I accept that argument. In view of what Mr Bartholomew accepts about the 1994 decision, the Registrar was right in refusing his application for an extension. I therefore dismiss his appeal against the Registrar's order. Insofar as he is seeking to appeal against the refusal of a review, he does not need an extension. That application was made within the forty-two days prescribed by the rules. I should add that there is a serious dispute on whether Mr Bartholomew has any valid legal grounds for appealing against the refusal of the review. The letter sent by the Hackney Borough Secretary and Solicitor dated 20 March 1996 makes submissions about the merits of the appeal. It submits that there is not any arguable ground of appeal. That is not a matter for today. The immediate question is whether the appeal is out of time, and if so, whether an extension should be granted. It will be open to the London Borough of Hackney, on the hearing of the appeal, to submit that there are no valid grounds for appealing. They may be right. They may be wrong. But that is not a question for decision now. It is a question for a decision on the inter-partes hearing of the appeal against the refusal of the review.The position is therefore this, in summary: the Registrar was right to refuse the extension for the appeal against the decision in 1994. Her decision does not, however, affect the appeal against the review refusal of 4 August 1995. No extension was needed, and therefore no extension was being refused. Mr Bartholomew can proceed with that appeal as being within time. In due course the appeal will be set down for a hearing at which he can attend to advance his grounds of appeal and the London Borough of Hackney can attend to oppose his appeal.