Mersey Docks & Harbour Company Ltd & Ors v Brady & Ors [1997] UKEAT 1302_96_0403

EAT
Mersey Docks & Harbour Company Ltd & Ors v Brady & Ors
[1997] UKEAT 1302_96_0403 · 1997-03-04

JUDGE PETER CLARK :

The issue in this appeal is whether certain originating applications were presented within time, and if not, whether it was reasonably practicable for them to be presented within time.These were multiple applications by former dock workers employed by the respondents complaining of unfair dismissal. The earliest effective date of termination was according to the Industrial Tribunal, 25th September 1995. Accordingly, the primary three month limitation period in respect of those earliest complaints expired on 24th December 1995.All applicants were represented by Messrs Pattinson & Brewer, Solicitors. Their cases were dealt with by Mr Cockburn, a partner, and a trainee solicitor, Ms Scott. After receiving instructions from the relevant union officer, the solicitors prepared the necessary originating applications by 21st December 1995.The Industrial Tribunal made the following findings of fact:
"6 ... On 21 December 1995 Mr Coburn and Ms Scott considered best how to lodge the applications, bearing in mind it was the Thursday before the Christmas holiday, and time for some of the applications expired on Sunday 24 December 1995. They right concluded in our judgment, that it would be unwise to trust the post or to attempt to send them by fax to the Central Office. They consulted Harvey and another publication. They considered the case of Benji [ Bengey ]-v- North Devon District Council (1977) ICR 15; they concluded that they should investigate lodging the applications by hand at the Regional Office of the Tribunal in London North, (hereinafter referred to as Woburn Place). And so Ms Scott telephoned Central Office in Bury St Edmunds; she spoke to one Chris Kelly [ Kerry ], the Supervisor of the Registration Department; he informed her that if the applications were delivered to Woburn Place, it would be treated as "good presentation". In these circumstances, on Thursday 21 December 1995, Ms Scott delivered the applications to Woburn Place; she obtained from Mr Fielder, a clerk, a signed receipt on a compliments slip. They were subsequently sent on to the Central Office, where they were stamped as having been presented on 30th December 1995. They were therefore prima facie, on the face of the date stamp, out of time. The Regional Secretary at London North has subsequently stated that the originating applications should have been dated stamped at London North on 21 December 1995."
The limitation point was taken by the respondents before the Liverpool Industrial Tribunal. At a hearing held on 30th August 1996 that tribunal found that the earliest dismissal complaints had been presented in time, and made an alternative finding that if not then it was not reasonably practicable to present them within time.Against that decision the first three named respondents below now appeal to this tribunal. We have had the benefit of a full and detailed skeleton argument put in by Mr Humphries, who appears on behalf of those appellants.Without going into the detail of the submissions there contained, our starting point in this appeal is to ask whether under the Rules it is mandatory for an originating application to be presented to the Central Office of Industrial Tribunals at Bury St Edmunds. If it is not, then it seems to us that this appeal must fail.Rule 1(1) of the Industrial Tribunals Rules of Procedure 1993 provided:
" 1.-(1) Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out ..."
There is no dispute that the originating applications complied with Rule 1(1).Rule 20(2) of the Rules then provided:
" (2) All notices and documents required by these rules to be presented to the Secretary may be presented at the Office of the Tribunals or such other offices as may be notified by the Secretary to the parties."
In our judgment the Industrial Tribunal was correct in finding that these originating applications were presented within time on 21st December 1995.It is now well-established in authority that presentation of a complaint to a Regional Office of Industrial Tribunals is good presentation. In Hetton Victory Club v Swainston [1983] ICR 341 , the Court of Appeal upheld a decision of the Employment Appeal Tribunal [1983] ICR 139 in relation to the finding that the application in that case was presented out of time. In the course of the judgment Waller LJ at page 345F he said this:
"The Employment Appeal Tribunal in the present case, with whose judgment I entirely agree, concluded by saying [1983] I.C.R. 139, 142:
"an application is presented if it is placed through a letterbox or dealt with in some other way held out by the regional office as a means whereby it will receive communications."

I agree with this and would dismiss this appeal."

In the earlier case of Bengey -v- North Devon District Council [1977] ICR 15 , a decision of the Employment Appeal Tribunal, O'Connor J presiding, his Lordship said at page 18H, having set out the equivalent of Rule 20(2):
"... Under rule 14(1) (a) there was power in the secretary of the tribunals to direct, if he so chose, that it be delivered to him [ that is the originating application ] either at the office of the tribunals, or at such other office as he chose, before it was "delivered.""
Later he said:
"But the power contained in rule 14, in our judgment, is clear: there is power in the secretary of the tribunals to direct that it be delivered to him either at the office of the tribunals - which, by the interpretation section, means the central office of industrial tribunals [ then in London ] - or at such other office as he chooses to notify."
The rules in force at the time of this tribunal hearing may be said to have been opaque. The position has now been regularised by an amendment to Rule 20 effected by SI 1996/1757 with effect from 31st July 1996. Rule 20(2) now provides as follows:
"(2) All notices and documents required by these rules to be presented to the Secretary [other than an originating application] may be presented at the Office of Tribunals or such other office as may be notified by the Secretary to the parties.
(2A) An originating application may be presented at the Office of the Tribunals or at any Regional Office of the Industrial Tribunals."Mr Humphries has argued first, that Bengey was wrongly decided and that we should say so and not follow it. Secondly, that the decision of both the Employment Appeal Tribunal and the Court of Appeal in Hetton Victory Club were per incuriam . We cannot accept either submission. In our judgment it has been plain for many years, and the position has now been formalised in the amendment to Rule 20, that presentation of a complaint to a Regional Office of Industrial Tribunals is good presentation. When these solicitors, having researched the position, then prudently telephoned the Central Office and spoke to Mr Kerry, Mr Kerry was merely informing them of what the practice had been for all those years. In any event, as 'the secretary' for the purposes of the Rules, Mr Kerry directed that the originating applications could be delivered to him at the Regional Office. The applicants' solicitors relied upon that direction.We can see nothing in this appeal. There is no arguable point of law to go to a full hearing, and it will be dismissed.