TP Associates (Thames Valley) Ltd v Pointer [1996] UKEAT 930_96_1012

EAT
TP Associates (Thames Valley) Ltd v Pointer
[1996] UKEAT 930_96_1012 · 1996-12-10
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the Registrar's refusal to permit an appeal out of time. The Notice of Appeal was received well out of time.The circumstances are briefly these. On 8th March 1996 an Industrial Tribunal sitting at Reading concluded that the applicant was unfairly constructively dismissed and adjourned the question of remedy to a date to be fixed. The extended reasons giving that decision were sent to the parties on 9th April 1996. Thereafter a date was fixed for the remedies hearing.Between the date of the original tribunal and 3rd May, the respondent company, the employing organisation, went to solicitors Messrs Brain & Brain who asked for the remedies hearing to be postponed on the basis that there was going to an appeal against the decision on liability. Indeed it is the employer's case that on 11th March 1996 prior to even receiving the written decision of the Industrial Tribunal, they had indicated to the Reading Industrial Tribunal an intention to appeal, in a letter to which they received no response.The Industrial Tribunal did not accede to the application that there should be a postponement of the remedies hearing, but did indicate that if the Notice of Appeal had been served the position would be reviewed. A Notice of Appeal was not served and accordingly the remedies hearing took place on 3rd May 1996, and the tribunal awarded the sum of £2,625.What then happened was that the employers entered into discussions with the employee's representative over the payment of that sum, and put forward a suggestion that it should be paid in instalments. Those negotiations did not reach fruition, and they were sent a notice indicating that unless full payment was made by 12th July 1996, redress would be sought through the courts.The employers contacted the Industrial Tribunal seeking their advice, having written to the employee's representative (Mrs Pointer):
" ... we are reliant on a set budget from the Health Authority and cannot make provision for exceptional items to the amount of £2,625.00 in one payment. We have suggested 9 payments to meet our obligation, which Mrs Pointer has written back to us saying is totally unacceptable and she will pursue us through the courts.
We do not want to go to court and feel we are being equitable and fair and meeting our obligation - can you help please?"The Industrial Tribunal responded on 12th July 1996 saying:
"Thank you for your letter of 8 July 1996 which has been referred to a Chairman who directs me to reply.
The Tribunal cannot intervene in any issue as to enforceability of the order or payment by instalments. This must be a matter to be resolved direct with the applicant or with the County Court if enforcement action is taken.

Copies of this letter are being sent as indicated below."

Subsequent to that, on 29th July, the employers wrote to us enclosing a Notice of Appeal saying:
"Please find enclosed form EAT 1 and below reasons for appeal in regards question 6. In regards time period allowed in submitting an appeal, we previously submitted our appeal in writing to Reading Industrial Tribunal on 11/03/96 prior to receiving the written decision, but have had no response.
The reason for our appeal is that the Chairman of the Tribunal did not allow us fair representation in order to defend ourselves against allegation from the applicant, which the Tribunal accepted, and has therefore not applied the law correctly and fairly."To be more specific, they take objection to the finding that they harassed, swore at and abused the applicant. The letter goes on:
"The Chairman asked us to respond, we informed him the best way to defend ourselves would be to have witnesses, and we asked him to give us time to get all our other staff to the Tribunal - he refused. We then asked if we could have all other staff to send facsimiles to him - he refused. We then asked him how we could possibly defend the allegation properly, especially in view of the fact that the allegation was not even mentioned on the applicants IT1, and again asked for time to be allowed to call witnesses, again refused.

We look forward to having a fair hearing."

It is incumbent upon on an appellant who wishes to make an application for leave to appeal out of time to make a full and frank disclosure to the court of all the circumstances in which the appeal comes to be made out of time. Mr Budd, appearing on behalf of the employers, has submitted to me that there is correspondence from an Industrial Tribunal Regional Chairman in Southampton, which misled him into believing that the correct place to appeal to was the Industrial Tribunal at Reading. I think he is saying that he thought he had made his appeal on 11th March 1996 to which he had had no response. The letter on which he relies has not been produced to us, I asked Mr Budd whether he wanted an adjournment, he indicated that he would, but he indicated that he would not be in a position to offer to pay the costs of the employee's representative who has come here today, as a result of the adjournment. I have taken that factor into account. It seems to me to quite unsatisfactory that the courts should be put into the position where an appellant is seeking the indulgence of the court and yet has not come equipped to provide the court with the relevant material.Furthermore, it seems to me to be improbable in the extreme, that any experienced Regional Chairman, as Mr Edwards is, could have possibly misled any litigant as to their rights and obligations in relation to an appeal. Furthermore, every time a decision of an Industrial Tribunal is sent to the parties, and in this case there were two decisions, first on liability and the second on quantum, the parties are informed in clear and unambiguous terms as to their obligations in relation to Notices of Appeal.This is a very clear case where an appeal has been lodged well out of time. In my judgment the decision of the Registrar was correct and I dismiss this appeal.