Cyberdescence Design Ltd v Dunning [1996] UKEAT 1314_95_1901

EAT
Cyberdescence Design Ltd v Dunning
[1996] UKEAT 1314_95_1901 · 1996-01-19
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the order of the Registrar dated 24th November 1995. The order was made on the application of the appellant Cyberdescence Design Limited for an extension of time for appealing against the decision of the Industrial Tribunal held at London (North) on 15th August 1995.The tribunal heard a claim for breach of contract by Mrs Dunning, who was formerly employed by the respondents, Cyberdescence, as personal assistant and secretary. At the hearing a friend of Mrs Dunning, Mr Mallett, represented her. Mr Trew, the Managing Director of Cyberdescence, represented the company and gave evidence.The decision was notified on 6th September 1995. For reasons set out in the extended reasons the tribunal decided that Mrs Dunning was entitled to £940 for breach of contract.The Notice of Appeal against that decision was not received in the Appeal Tribunal until 8th November 1995, well out of time.Mr Trew made an application on behalf of the appellant for an extension of time. The Registrar refused that extension Mr Trew asked to appeal against that decision. This is the appeal.Mr Trew has appeared on the appeal for the appellant. Mr Mallett has appeared again for Mrs Dunning.I have to decide on this appeal whether this is a case in which an extension of time should be granted. The rules are clear. They provide for a right to appeal, if an appeal is served on the Appeal Tribunal within 42 days of the sending out of the extended reasons for the Industrial Tribunal's decision. There is a discretion to extend time, but it is only exercised where it is shown that there is a good reason for not appealing in time. That reason must excuse the failure to comply with the time limits. The tribunal is cautious in its approach as to what constitutes a good reason. It is not enough the reason that explains the failure to comply with the time limits. It must be a reason which excuses the failure to comply with those limits.In this case, Mr Trew's explanation is as follows: His company was dissatisfied with the decision. He made it clear at the announcement of the decision on 15th August 1995 that he wished to appeal. After he received the decision, he wrote a letter to the Industrial Tribunal on 22nd September 1995 saying:
"As stated verbally at the hearing, we confirm that we wish to request a review and/or appeal against the decision of the tribunal. The main reason is that the judgment appears to be on whether Mrs Dunning was unfairly dismissed, not on whether there was a breach of contract. We were entitled to dismiss Mrs Dunning for incompetence because she had worked here for less than 4 weeks, and indeed she has not contested that dismissal. We believe the case was misjudged, and hereby request a review."
That application for review was considered. A decision on it was sent to Cyberdescence on 27th October 1995. Mr Trew says the letter was received on 30th October 1995. The letter said:
"2 The Chairman who heard the case has refused your application for a review under rule 11(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 on the grounds that it has no reasonable prospect of success. You have not put forward any of the ground for review under rule 11.
3 Any appeal against the decision should be made to the EAT."Mr Trew contacted the Employment Appeal Tribunal and asked for a copy of the Notice of Appeal form. That was sent to him. He received it on 7th November 1995. He completed and despatched it the same day, along with the letter requesting an extension of time. The Notice of Appeal was received here on 8th November 1995.Mr Trew submitted that an extension of time should be granted for these reasons. The Industrial Tribunal had omitted, when they sent the extended reasons on 6th September 1995, to include the form IT9 headed "Notes on Tribunal Decisions". That explains, among other things, the procedure and time limits relevant to applications for review and to appeals to this tribunal. It was acknowledged by the Industrial Tribunal in a letter of 21st November 1995 that that form had been omitted. That is an unfortunate feature of the circumstances of this case. It is the regular practice of Industrial Tribunals to include the form IT9 which contains guidance for reviews and appeals.Mr Trew submitted that his company is only a small company. It cannot afford the legal expenses of solicitors. It is therefore reliant on information provided by the Industrial Tribunal. Every effort had been made to comply with the procedures. There was no intention, on his part, to delay the institution of an appeal. He has received some legal advice that an appeal would be justified. It would be unjust to deny him an appeal by refusing an extension.Mr Trew was unable to provide information of any further details of efforts made by him to discover, after being notified of the decision, what the relevant time limits were, other than the correspondence which he had with the Industrial Tribunal, as already mentioned.Mr Mallett accepted that the Notice of Appeal was served within the time limit, so far as it may be an appeal against the refusal of a review. But it is difficult to appeal against the exercise of a discretion which refuses a review, more difficult than appealing against the original decision on liability and compensation. The decision of liability and compensation is a matter of decision on fact and law. A decision on a review is a matter of discretion as to whether to allow further argument and possibly further evidence on a decision. It might not therefore help Cyberdescence for this appeal to be confined to the review decision.On the appeal against the original decision, Mr Mallett said it was out of time. Mr Trew was well informed. He had conducted the case himself before the Industrial Tribunal. Mr Trew said at the announcement of the decision on 15th August 1995 that he wished to appeal. He was warned by the Chairman that, if, that was so, he must follow the procedures. Mr Trew was made aware of the review procedure and complied with the time limits relating to that. The reason, Mr Mallett submitted, that this appeal was out of time was because Mr Trew had been negligent. It was not the duty of the Industrial Tribunal staff to give litigants advice about procedures. Mr Trew was negligent in not finding out for himself.Mr Trew's answer to this was that, when he said at the end of the Industrial Tribunal hearing that he wished to appeal, he was not drawing any distinction between an appeal and a review. He was using "appeal" in, as he said, a "generic sense". There is some support for this belief on his part in the terms of the letter of 22nd September 1995. In the opening paragraph he confirmed the request for a "review and/or appeal" against the decision. I appreciate that it is not always understood by users of tribunals that the review procedure and the appeal procedure are two different ways of seeking to challenge an unfavourable decision.Even so, I have reached the conclusion that the Registrar was right in this case to refuse an extension of time. In my judgment, the factors put forward by Mr Trew explaining the reason for the lateness of the appeal do not excuse the failure to comply with the time limits. Every effort is made in the Industrial Tribunal system, which operates more informally than an ordinary court, to make allowances for those who do not have the benefit of legal advice and representation. If they do not have the benefit of that advice, it is their duty to take reasonable steps to find out for themselves the relevant procedures and the relevant time limits for taking steps.In this case, as Mr Mallett points out, Mr Trew had been reminded at an early stage in the proceedings that there are time limits in Industrial Tribunal proceedings. I have been handed a letter which shows that he was out of time in submitting the Notice of Appearance, but was granted an extension. That should be enough to alert a person in business, as Mr Trew is, that there are time limits and that if you do not comply with them you may have problems, unless an extension is granted.In this case reasonable steps were not taken by Mr Trew after 15th August 1995, when he knew his firm had lost the case, and in the subsequent months of September and October to find out the time limit for appealing. The fact that he was pursuing a review does not excuse his failure to find out the time limit for an appeal. It is not enough simply to say that the "Industrial Tribunal did not tell me", or the Industrial Tribunal did not enclose the notes on the IT9. There are other ways in which unrepresented users of the tribunal can find out these matters. There are free leaflets available in the Industrial Tribunal. Information is available in Citizens Advice Bureaux. Information is available in public libraries. Letters could be written, (they were not in this case) to the Industrial Tribunal asking what the time limits are. For all those reasons, I accept Mr Mallett's submission that there is no excuse for the Appellant failing to comply with the time limits in this case. Mr Trew failed to take steps that a reasonable unrepresented person would have taken in order to find out what he should do to lodge an appeal in time. I dismiss the appeal.