Westley v Sebbco Capital Markets Ltd [1996] UKEAT 1169_95_2304

EAT
Westley v Sebbco Capital Markets Ltd
[1996] UKEAT 1169_95_2304 · 1996-04-23

JUDGE HARGROVE Q.C. :

The tribunal decided that the appellant was out of time under the provisions of Section 67(2) of the Act. The tribunal rejected the argument that it was not reasonably practicable for the appellant to present the application within the three month time limit.The chronology appears to have been this. The appellant was dismissed on 13th October 1994. There was an appeal against that dismissal, an internal appeal, and that failed on 10th November 1994. At that stage it seems to be common ground, that the appellant was being advised by solicitors. Indeed they had been waiting until after that date before making any further move.The application to the Central Office was dispatched by first class post on 9th January 1995. It was therefore, three days before the time limit. That time limit would expire at midnight on 12th January 1995. Upon the 12th, the solicitor for the appellant, telephoned the Central Office of the Industrial Tribunals, and asked whether the document had been received. His attendance note records amongst other things this:
"I therefore needed to confirm that the IT1 had been received.
COIT advised that they unfortunately had a serious backlog of applications which meant that an application received on 9 January would not be processed for a number of weeks. It was therefore not possible for them to confirm receipt at this stage.I said I had never experienced any problem in the past in confirming receipt of IT1s.

COIT advised that they had a massive influx of new applications recently."

In fact, as now seems to be the case, the IT1 had not arrived.The next stage along the line is that on 16th January 1995 the solicitors to the appellant wrote to Messrs Goodman Derrick, the solicitors for the respondent employers, indicating the presence of the claim.A month later, on 16th February 1995, the solicitors for the appellant, sought to amend the originating application. They wrote a further letter to the Central Office on 27th February 1995. On 7th March 1995 the office telephoned the appellant's solicitors saying that the application had not been received, thereupon a copy was faxed to the Central Office together with the letter of 9th January 1995 which had accompanied the original application.The basis for the appeal is that there has been a misunderstanding by the tribunal of the cases upon which reliance has been placed. I can summarise the appellant's approach as this. Where a solicitors posts by first class post a letter, he has a reasonable expectation that it will be delivered in the ordinary course of business within two days, in other words in this case it would have been delivered within the time limit. In that respect, reliance is placed upon St Basil's Centre v McCrossan [1991] IRLR 445 . In the course of that at 447, the President of this tribunal said this:
" However, although we therefore will dismiss the appeal, it occurs to us that there should, if possible, some uniformity of approach throughout the country by Industrial Tribunals on these issues of time limits and posting. These issues so often arise over weekends. The date and the time of posting can be proved by the postmark, and that is where one starts; the receipt of the documentation is almost always noted by a stamp from the receiving office at the Central Office of Industrial Tribunals. The reasonable expectation, therefore, is the issue which will arise often and in order encourage uniformity it seems to us that it would be entirely reasonable for Tribunals to look at see the guidance which is given by Queen's Bench Division Practice Directions. In particular we look at Direction no.41 on p.193 of the second volume of Supreme Court Practice."
The President then sets out the various matters which are recorded there about the times for receipt of service of documents by post.
"Unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.
(2) To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the course of post was effect:(a) in the case of First Class Mail on the second working day after posting;(b) in the case of Second Class Mail on the fourth working day after posting;"One pauses there and interposes, one hopes not a disrespectful remark, that if only that were true in fact. The President continues in this way:
" That gives some idea to what is thought to be a reasonable expectation, but if there is evidence to the contrary, in a particular situation, then it is upon the evidence rather than upon the general approach that Industrial Tribunals will of course be able to rely, and indeed should rely.
We do not, by saying this, intend to bind Industrial Tribunals in any way, but seek to assist uniformity of approach in this problem which does seem to be arising with greater frequency."Once, therefore, it is said that that expectation has arisen, then there must come something to displace it before it can in any way be said that there has been a dereliction of duty.Attention is drawn to the well-known comments of Lord Denning MR in Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA . He says:
"The words "not practicable" should be given a liberal interpretation in favour of the applicant. If in the circumstances the applicant knew or was put on inquiry as to his rights and as to the time limit, then it was practicable for him to have presented his claim within the four weeks. If he did not know and there was nothing to put him on inquiry then it was not practicable and he should be excused."
The further contention is that the substantial course of the failure in this case, was nothing to do with the solicitors. It was caused by the inadequacy of the Central Office in being unable to identify documents coming in such a manner as to give a clear answer to the enquiry which was made by the solicitor on 9th January 1995.The tribunal, in reaching the conclusion it did, relied upon Capital Food Retail Ltd v Corrigan . In that case, the circumstances were of some interest. The respondent was dismissed and on 19th March 1992 she consulted solicitors. She told them to seek a remedy for unfair dismissal. The solicitors dictated a letter. The letter and application were duly despatched. It was about five weeks before the end of the three month period. Nothing happened. Inevitably the client came back and asked what progress was being made. It was then discovered that no acknowledgement had been received, for the simple reasons that the document had not reached the office. The Industrial Tribunal at first instance had held that it was not reasonably practicable. But, on appeal to this tribunal, that decision was reversed.The position was put clearly in these terms:
"The duty of a person acting for an applicant went beyond simply positing the application, and the solicitors had a duty to see the application duly arrived, and they had had at least five weeks within which to check that it had. There was no presumption that whatever was posted would be delivered. The phrasing of the decision also suggested that the Industrial Tribunal had been looking at the position of the applicant and ignoring that of her advisers, which was not correct ..."
In a further passage paragraph 6, the court held in this way:
" In the present case, it can be accepted that, initially, there was an impediment to the presentation of the complaint, namely, the unexpected failure of the letter dated 25 March 1992 to reach the Central Office of Industrial Tribunals. The existence, however, of that impediment is not sufficient to satisfy the test of s.67(2) unless the applicant, or her advisers, have taken all the steps they should reasonably have taken, in the circumstances, to see that the application was timeously presented. ... It seems to us to be a matter of ordinary and prudent practice to employ some system of checking that replies might reasonably be expected within a certain period have in fact been received, and that the conduct of business is taking a normal course. In the present case, it appears that the applicant's solicitors did not carry out any such check, but simply relied upon the assumption that the application had been duly presented. For our own part, we have no hesitation in coming to the view that in doing so they filed to take such steps as were reasonable in the circumstances and, accordingly, that the test set out in s. 67(2) was not satisfied. We do not think that anything that was said in St Basil's Centre v McCrossan supra affects the view which we have formed."
The appellant here, say that that decision has got be limited to the sort of case in which you would reasonably expect some reaction from the Central Office. If you do not get it, if you take no further steps, you have obviously failed to reach the proper standard. However, they say it cannot apply here. Because, in this particular case, because the originating application was dispatched only three days before, one would not expect to get back a reply. Therefore, it is said, that the normal presumption, which the solicitors are entitled to have, continues. There is no folly on his part in taking no further step. Indeed, he went further, it is claimed, than was necessary, even by telephoning the office.We regret to say that we cannot take that view. It seems to us that where there is an application which is close to the time limit, it is incumbent upon those conducting such business, to make certain that applications have been received. In the this particular case, what happened was that they received an answer from the office which was neutral. They therefore upon that particular day knew:

a) that the time limit expired at midnight; and

b) they had no confirmation.Mr Walker suggests that they were no obliged to do anything else. That is not an argument which appealed apparently to the Industrial Tribunal, nor does it appeal to us. That type of check, the tribunal felt, was not adequate. What they ought to have done was to have faxed a document that day to the Central Office, that would have ensured two things. First, that the document arrived in time, and secondly, it would have ensured that they would have had, what I have called the success slip, a confirmation that it had been so delivered.It had been objected that that approach will result in a flood of faxes in to the offices of the Industrial Tribunals, and that it may be quite impracticable for those who are not in possession of fax machines, those who are not in the professions dealing with this sort of matter on a daily basis, putting such person at a disadvantage.It seems to us that it is unnecessary to go beyond what we have to decide for this case. In our view, the tribunal was perfectly entitled to reach the conclusion that they did upon this issue.The second issue which the tribunal turned its mind to was the question of whether there was, if it was not reasonably practicable to make the application within three months, whether the period of time after the deadline was a reasonable one when the application was finally made. We are asked to look at that upon this basis by the appellant. Given the presumption of delivery, the appellant's solicitors were entitled to wait until they were told definitely, which they were on 7th March, that that document had not been received. It is noteworthy that it was five weeks before even a letter was sent to the Central Office, that of 16th February, and even that did not raise the question of whether the document had been received. One would have expected at that stage at least, some enquiry to have been made, or at least, the question raised whether or not there was a case number allotted. The period of 7 1 / 2 weeks was held by the Industrial Tribunal to be too long. We can see no fault in that.Reasonable practicability and delay are above all questions of fact for the tribunal. The expression used in Palmers & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 is that they are "preeminently an issue of fact for the Industrial Tribunal, and it is seldom that an appeal from such a decision will succeed." We entirely agree with that approach. In accordance with it, we shall dismiss this appeal.