Cossey v Collins & Brown [1997] UKEAT 1298_96_1703

EAT

Cossey v Collins & Brown

[1997] UKEAT 1298_96_1703 · 1997-03-17

MR JUSTICE MORISON (PRESIDENT): This is an appeal against the refusal by the Registrar to extend time for lodging an appeal out of time. Her order was dated 12 November 1996. The Appellant has not appeared before me today. She is not required to do so. I am content to examine the case on the basis of the documents, which she has submitted to me, and on the basis of arguments presented to me by Miss Haste, on behalf of the Respondents.

The decision under appeal is a decision of an Industrial Tribunal held at London (South) which was entered in the register and copies were allegedly sent to the parties on 20 June 1996. It is the Appellant's case that she did not receive the decision at that time. On 13 July she received a letter dated 10 July from the Respondents' Solicitors referring to the decision. She apparently telephoned the Industrial Tribunal on 17 July, pointing out that she had not received a copy of the decision.

On 18 July the Industrial Tribunal posted a further copy of the decision which was received by her on 24 July 1996. I am content to assume, in her favour, that the reason why it did not arrive with her until that date, that is six days after posting, may have been caused by postal strikes and other difficulties of that sort.

On 30 July she contacted her Solicitor. She says:

"I contacted my solicitor immediately by phone because, having now been able to read the Decision and the reasons, I very firmly wish to appeal against the Decision. My solicitor's advice was to obtain an appeal form from the EAT. I phoned EAT. As time was short, they suggested I contact in the first instance the Chairman, and said they would post me the relevant form. I received this on July 31 - now 32 days into the appeal time limit. I spoke to my solicitor, sent off the form and wrote to the Chairman on the same day."

It is to be noted that, in letters in which the Appellant has sent to the Employment Appeal Tribunal, dated (I think) 30 September 1996, and an undated letter which was received here on 22 October 1996, that a different version of the telephone call with the EAT is put forward by the Appellant. In the second paragraph of the earlier of the two letters she said:

"When I realised the earliest my appeal could be lodged would be late, I phoned your office and was told to write to the Chairman. This I did. He told me to write to the Regional Secretary. This I did. He told me to write to you. Which I am now doing ..."

In one letter she says that she realised that her appeal would be lodged late and phoned the office, in the other she says she phoned the EAT as time was short. There is a clear distinction between making the phone call after time has expired and making the phone call at a time when she believes that she was still within time.

It seems to me to be inherently unlikely that anything that was said by the Employment Appeal Tribunal staff in any way deterred her from lodging her Notice of Appeal within time. In fact, we did not receive any Notice of Appeal until 22 October, well out of time, indeed 23 days out of time.

After she had contacted her Solicitor she then wrote to the Industrial Tribunal, aware of the Employment Appeal Tribunal time limit, complaining in effect that there had been this great delay in sending the decision to her and that letter was responded to by 20 August 1996, and she then promptly wrote to the Regional Secretary asking for an investigation.

The letter of 20 August 1996 was not received by her until 9 September, which was the day she wrote to the Regional Secretary and eventually, on 25 September she received a response to that letter and only lodged the Notice of Appeal with us on 22 October 1996.

It seems to me that there is no good reason put forward for why this appeal has been lodged out of time. She was not, in my judgment, in any way misled as to what she should do. She had the relevant information. She had legal advice and could, and should, have put in her notice of appeal and pursued her complaints about the Industrial Tribunal's alleged misconduct at the same time.

Accordingly, I am satisfied that this is not a case where time should be extended and therefore her appeal will not be registered.

I think that in this case I can categorise Miss Cossey's conduct in pursuing the appeal in this case as unreasonable. She has not put forward any credible, honest explanation which is required before the enlargement of time can be considered. I do consider that the expense and trouble which she has put the Respondents to in this case was caused by her unreasonable conduct and accordingly, I think it appropriate to make an order for costs.

I note that she was employed by the Respondents as a senior editor, the Respondents being a publishing company. She was in a senior position. I have no reason to believe that she should not or would not be in a position to meet a reasonable order for costs, which I fix at £250, and I therefore direct that those costs be paid on the basis that her conduct has been unreasonable.