Ali v College Of North East London [1998] UKEAT 1309_97_0206

EAT
Ali v College Of North East London
[1998] UKEAT 1309_97_0206 · 1998-06-02

JUDGE PETER CLARK :

By a decision with extended reasons sent to the parties on 21 July 1997 the London (North) Industrial Tribunal dismissed the Appellant's complaint of unfair dismissal and/or unlawful racial discrimination brought against his former employer, the Respondent College.Against that decision the Appellant appealed by a Notice received at this Tribunal on 13 October 1997, 39 days outside the 42 day time limit for appealing.His application for an extension of time for appealing was dismissed by Order of the Registrar dated 29 January 1998. Against that order he now appeals to me.This morning Dr Ghaffar, who appears on behalf of the Appellant, renewed an application for an adjournment of this hearing which had been refused by the Registrar by letter dated 28 May. His ground for the application was that the Appellant had received a letter from the Commission for Racial Equality dated 1 June 1998, stating that the Commission had only recently received an application from the Appellant for assistance, (I was told that the application was made on 11 May) and that the case file would shortly be allocated to a Complaints Officer and that the Appellant would be provided with advice and assistance until the relevant committee made a final decision in his case. He asked me to adjourn this appeal for the purpose of, perhaps, obtaining advice and assistance from the CRE.That application was, unsurprisingly, opposed by Mr Hart on behalf of the Respondent, on the basis that this was an appeal against an order refusing to grant an extension of time for an appeal which was well out of time; that the Respondent would be put to further expense if this hearing was adjourned and that, in all the circumstances, justice required that the matter proceed on the date fixed, that is today.Dr Ghaffar indicated that the Appellant was not in a position to pay the costs of the Respondent thrown away, if an adjournment was granted today, and in these circumstances it seemed to me right to continue with the appeal.The Appellant's explanation for the delay in appealing is, first, that he did not receive legal advice following receipt of the Industrial Tribunal decision. He could not get legal aid. The guideline authority of United Arab Emirates v Abdelghafar [1995] ICR 65 makes clear that a delay in obtaining legal aid will not normally be a good excuse for default in appealing and Dr Ghaffar accepts that proposition. Furthermore, I note that at the Industrial Tribunal the Appellant was represented by an Employment Law representative, Mr Glazier, and I am told that, following receipt of the Tribunal's decision the Appellant did discuss with Mr Glazier the possibility of an appeal.The second reason for the delay put forward is that the Appellant was in a state of confusion as to what he should do because he was suffering from acute depression following his dismissal, a condition accelerated by the adverse decision of the Industrial Tribunal.In support of the second ground he relies upon letters from his general practitioner, Dr Mughal, dated 7 October 1997 and 7 January 1998. In the first letter Dr Mughal writes:
"This is to certify that the Appellant has been under treatment due to stress and depressive illness since February '96.
He has been unable to concentrate, he is indecisive, and suffers from insomnia.

His symptoms have been particularly worse since the beginning of July '97."

In the second letter he states:
"Further to my previous report dated 7.10.97, I would confirm that the above patient has been having treatment for depression, stress, with inability to concentrate, insomnia and anxiety.

It is further reiterated that he was indeed suffering from acute depression."

As I read those letters they do not amount, certainly in my judgment, to a clear and unequivocal medical opinion that the Appellant was so disabled that he was incapable of preparing, or giving instructions for the preparation of, a Notice of Appeal within the ordinary 42 day time limit. There is no suggestion that his condition materially improved so as to enable him to do so in October 1997, when the Notice of Appeal prepared by his new representative, Dr Ghaffar, was lodged.Further, Dr Ghaffar submits that there is here an arguable case on the merits of the appeal. I have considered the grounds of appeal attached to the Notice dated 10 October 1997 and in my judgment, notwithstanding Dr Ghaffar's best efforts in oral submission, those grounds do not disclose any point of law. They assert that the Tribunal's decision is perverse and that there was a misdirection in law, and then give particulars of challenges to factual findings made by the Industrial Tribunal.However, I do not decide this appeal on that basis. I bear in mind the observation of Mummery J, in Abdelghafar at page 72 A:
"The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the appeal tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal."
Further, I reject Dr Ghaffar's submission that this is a case in which there are exceptional circumstances, as there were on the facts of Abdelghafar . In that case the particular circumstances which led to the grant of an extension of time were that it was alleged that the Industrial Tribunal had failed to properly apply the law of State of Immunity and that had they done so they would have found that they had no jurisdiction to consider Mr Abdelghafar's complaint. That is very far removed from the submission in this case that there is an arguable point of law raised in the challenge to the Industrial Tribunal's findings of a fair dismissal and no unlawful discrimination.I remind myself of the general guidance provided by Mummery J in Abdelghafar , in particular, where a Notice of Appeal has been lodged out of time, I must ask myself first, what is the explanation for the default, second does it provide an excuse for the default; thirdly are there circumstances which justify this Tribunal taking the exceptional step of granting an extension of time.Having considered the explanations put forward for the delay in entering the Notice of Appeal, I am not satisfied that a good excuse has been put forward. This is not a case where there are exceptional circumstances which justify the step of permitting an extension of time for appeal.In my judgment the Registrar reached a permissible conclusion on this application and accordingly, this appeal must be dismissed.

Costs

I think that probably this is an appeal which would fall within Rule 34 (1) and normally it would be appropriate to make an order for costs. However, I am told that the Appellant has no income other than State benefits and in these circumstances, bearing in mind his means, I do not regard it appropriate to make an order for costs.