Leggott v Trafalgar House Services Ltd [1996] UKEAT 1051_95_2702

EAT
Leggott v Trafalgar House Services Ltd
[1996] UKEAT 1051_95_2702 · 1996-02-27
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal by Mr Maurice Leggott against the order of the Registrar dated 6 October 1995. She refused an application by Mr Leggott to extend the time in which to file a notice of appeal. The application for an extension was opposed by the Respondents, Trafalgar House Services Ltd and the Registrar of the Tribunal made an order after considering written representations on both sides.After the order was notified, Mr Leggott wrote to the Registrar making it clear that he wished to appeal. This is the hearing of the appeal. Mr Leggott appeared in person and Mr Chronias appeared for Trafalgar House Services.Was the Registrar legally correct in refusing the extension? If she was not, then I should allow the appeal. In deciding whether her decision was legally correct I consider all the material put before the Tribunal, all the documents and all the arguments.The Rules are clear. Rule 3(2) of the Employment Appeal Tribunal Rules 1993 states 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 relevant dates in this case are these. Mr Leggott complained that he was unfairly dismissed on 31 May 1994 from his position as a maintenance manager with Trafalgar House Services. He took out the application to the Tribunal on 3 August 1994. At that time he had a solicitor, Mr John McCardle of McCardle, Cardwell and Mitchell, in Darlington.He changed solicitors before the hearing, which took place in the Industrial Tribunal at Newcastle on 5-6 January and 25 January 1995. At that hearing he was represented by a different solicitor, Mr Purdon. The Tribunal announced at the end of the hearing that Mr Leggott's claim for unfair dismissal failed.On 6 February 1995 summary reasons of the decision that Mr Leggott was not unfairly dismissed were sent to the parties. Mr Leggott received those. On 16 February he made a written application to the Industrial Tribunal for a review. He made that application in person because, as explained at the hearing today, he ceased to instruct Mr Purdon as his solicitor after the oral decision of the Tribunal on 25 January.In his letter to the Regional Secretary dated 16 February, Mr Leggott said:
"I refer to the hearing held on the 5/6th and 25th Jan.95 for which I have now received the summary report.
As Applicant I genuinely feel that I had been unfairly dismissed by Trafalgar House Services and therefore justified in bringing the matter to the tribunal. I still feel my case was justified and ask that some important factors be reviewed.Unfortunately I can no longer afford the services of a Legal Advisor and therefore apply to you in person."He explained the basis on which he sought a review. At the end of the letter he said:
"I ask if you would reconsider my case in the light of the new information that has come to my attention.
I would also be obliged if you would send me a copy of the Extended Statement of the Hearing when this becomes available.

Thank you in anticipation of your consideration."

The application for review was considered. The decision on the application was entered in the Register and copies were sent to the parties on 3 March. It appears from those reasons that the Chairman refused the application for a review on the grounds that it had no reasonable prospect of success. Mr Leggott received that decision on the review application. He says that he did not receive the extended reasons which, according to the date stamp on the last page, page 8, were entered in the Register and copies sent to the parties on the same date, 3 March 1995.The extended reasons were not, Mr Leggott says, received by him until 1 July. When he received them there was a stamp on the front:
"Amended in accordance with the certificate of correction signed by the Chairman and dated"
That had the date 22 March 1995. Under that are the words "Secretary of the Tribunals" and a further date, 27 June 1995.Mr Leggott refers to a letter which he wrote on 1 July 1995 to the Industrial Tribunal at Newcastle in which he said this:
"I have today received the final approved copy of the Extended Reasons for the decision of the panel at the above hearing.
I understand that under the regulations I can legally ask for an appeal on my case within 42 days of receiving the final copy.Would you therefore please send the relevant information so that I can make this application.I take it that the respondent will not be inform (sic) until I make the application."On 11 July the Industrial Tribunal replied to his letter and referred to a subsequent telephone call. The letter said:
"... I enclose relevant information regarding the appellate procedure.
I confirm that this correspondence will not be copied to the respondent.Regarding the time limit I am directed by the Chairman, Mr J R Hardwick, to state that under the Rules this is 42 days from the date of despatch of the written extended reasons of the Tribunal's decision. In respect of the point you raise, the time limit running from the promulgation of the Certificate of Correction, this is a matter entirely for you or your legal advisers and not for the Tribunal Office."It is not in dispute that Mr Leggott received the explanatory notes which contain relevant information about the appeal procedure. Those notes have a section headed "Appeal against Tribunal decision". They make it clear that anybody who wants to appeal against a Tribunal decision can only do so on a point of law, that a notice of appeal must be in, or substantially in, accordance with the official appeal form and an official appeal form may be obtained from the Registrar of this Tribunal. The address of the EAT is given in the explanatory notes. There then follow these words in paragraph 18:
"To whom [that is, to the Registrar] any questions relating to the time for appeal should be addressed."
It is clear in paragraph 19 of the notes that the notice of appeal must be served on the Employment Appeal Tribunal within 42 days of the date on which the extended written reasons for the decision were sent. It is pointed out that this date is shown on the last page of the document containing the extended written reasons. It is also pointed out that an application for a review to the Industrial Tribunal does not alter the time for the notice of appeal which continues to run.Mr Leggott did not write a letter to this Tribunal asking for the necessary forms until 27 August 1995. By that date more than 42 days had passed since the decision was sent on 3 March. More than 42 days had passed since he, on his own account, had received the extended reasons. He wrote a letter on 27 August to the Registrar of this Tribunal saying:
"I would be obliged if you would send me the necessary forms to enable me to prepare for an appeal in connection with the following case ..."
"As this application is outside the normal time limits but is currently being reviewed by The Regional Chairman Mr J D Myers I would be obliged if you would record my request.
I would also be pleased of any information on preparing and attending such appeals as it would appear that on being granted, I will have to represent myself."He was sent the forms and he completed them. He signed the notice of appeal which was dated 2 September 1995. That notice of appeal was finally received here on 5 September 1995. That date is well outside the 42 days which, computed in accordance with the Rules, ran from 3 March. If Mr Leggott did not receive extended reasons until 1 July, the 42 days had expired well before that notice of appeal was served.I have to ask whether Mr Leggott has given a full and satisfactory explanation for his failure to comply with the Rules. If I am satisfied that he has given a full explanation, I have to ask whether that is a good excuse for not complying with the Rules and whether there are any other exceptional circumstances which would justify relaxing the strict rules for appealing.I divide this into two periods. There is the period from the hearing in January to the date when Mr Leggott received the reasons in extended form on 1 July. I am willing to accept Mr Leggott's explanation as satisfactory for his failure to appeal within that period. He had had a solicitor at the January hearing, but he withdrew instructions from him after the hearing was over. He received the summary reasons. He could not be expected to appeal simply on the summary reasons because the rules for appealing require that the notice of appeal is accompanied by the extended reasons and the time for appealing does not run until the extended reasons have been sent.Mr Leggott applied for a review. He knew by the beginning of March that was refused, but he still had not received the extended reasons, though he had requested them in his letter applying for review on 16 February. I accept, on the documents, that extended written reasons were sent out to all the parties on 3 March. The extended written reasons were received by Trafalgar House Services. Mr Leggott received the decision on the review, sent on the same day. He says that he did not receive the extended reasons. I accept his explanation. I am satisfied that, if he had received them at that time, then he would, consistently with his earlier actions in applying for a review, have sought to appeal. He did not seek to appeal because he did not receive the extended reasons. I am surprised that he did not make any enquiries in March, April, May or June about the absence of the extended reasons. He actually asked for them at the end of his letter seeking a review on 16 February, but he made no further enquiries about them. I asked him why he had not made enquiries. He gave a number of reasons, which I accept. He says that he did not realize that it would take a long time. He thought legal things did take a long time. There was no particular reason for enquiring. He said that he had been out of work for some time, but had now got other employment. He saw no particular reason for chasing the Industrial Tribunal for the extended reasons.I accept, in those circumstances, that down to the beginning of July it was reasonable of Mr Leggott not to appeal. If he had not received the extended reasons he was not in a position to appeal. I accept that he has given a satisfactory explanation for not chasing the extended reasons from the Industrial Tribunal.The second period is between 1 July, when he received the reasons, and, soon after, when he received from the Industrial Tribunal the explanatory notes about appealing and 5 September, when he served the notice of appeal on this Tribunal.After he had received the extended reasons and the explanatory notes from the Industrial Tribunal Mr Leggott should have done two things. He should have read the notes and, if he had read them, he should have followed the advice in them. The advice was clear: if you wanted to appeal, you appealed to this Tribunal, you obtained a notice of appeal form from it, filled it in and sent it in. If you had any queries about the time-limit for appealing, they were to be addressed to this Tribunal. Unfortunately, Mr Leggott did not do that. He entered into correspondence with the Industrial Tribunal, which seems to have had the effect. of confusing both Mr Leggott himself and the Industrial Tribunal. I have been taken through the correspondence. I have come to this conclusion: at first, the Tribunal made it clear to him that the time-limit for appealing was 42 days from the date of despatch of the extended written reasons. If he had any query about the time-limit running from the promulgation of the certificate of correction on the first page of the decision, it was made clear to him by the Industrial Tribunal that that was entirely a matter for Mr Leggott or his legal advisers. It was not a matter for the Tribunal office.What Mr Leggott should have done after he received the letter from the Industrial Tribunal dated 11 July was to get in touch with this office to sort out any queries arising from the date of the certificate of correction. He did not do that. He entered into further correspondence with the Industrial Tribunal. The Industrial Tribunal thought at one stage in the middle of August that he was applying for a review and refused the review on the grounds that he was out of time.There were further letters passing between him and the Industrial Tribunal. The Industrial Tribunal were confused. Mr Leggott was confused. They thought by the end of August he was asking for advice about an appeal to the Employment Appeal Tribunal. It was to the Employment Appeal Tribunal that these matters should have been referred, not to the Industrial Tribunal. It was made clear that he might have grounds of appeal, but those should be addressed to the Employment Appeal Tribunal. By the time that he got round to doing that, the six weeks were already up, even reckoning from the date when he received the extended reasons.On this second period, I am not satisfied by Mr Leggott that he has a good excuse for failing to comply with the rules which require a notice of appeal to be served on this Tribunal, either within 42 days when the extended reasons were sent or within such further period as was reasonable. He let the whole of July and most of August go by before he did what he should have done at the beginning of July, i.e. to write to this Tribunal requesting a form, filled it in, signed it and returned it promptly and addressed to this Tribunal any queries that he had arising from the certificate of correction or any other queries about the time-limits.The principles are these: first, the Rules are clear, a 42-day time-limit. Secondly, it is a strict time-limit. It will only be departed from in exceptional cases. Thirdly, to bring a case within the exceptional-case category, an Appellant must have a good explanation and a good excuse for not complying with the Rules.Although I am of the view that Mr Leggott had a good excuse for not serving a notice of appeal before 1 July, he did not, in my judgment, have a good excuse for his failure to serve a notice of appeal within a reasonable time after that. His service of a notice of appeal on 5 September was outside any reasonable period. He feels aggrieved by this. He says that he did not expect there to be any errors in the decision. When he saw the extended reasons he was surprised to see errors in it. He has also made criticisms of the unhelpfulness of the Tribunal about his queries on the matter of appealing and the certificate of correction. He said that he did seek advice from a Citizen's Advice Bureau. He did seek advice at one time from the solicitor, but was told that this would involve work and that would cost money.I have sympathy for a person who tries to do a case on their own, even in the more relaxed legal atmosphere of an Industrial Tribunal. But there is not a different law for unrepresented parties than there is for represented parties. The rules are all the same. If they are not complied with, some allowance is given to the fact that a person is doing their case on their own. In my view, it would not be just to the Respondents to this appeal to extend the time for such a long period when, for the reasons mentioned, Mr Leggott did not act as promptly and carefully as he should have done once he received the extended reasons.I dismiss the appeal. In my judgment the Registrar was right to refuse an extension of time.