Ngonadi v London Fire & Civil Defence Authority [1998] UKEAT 143_98_1006

EAT
Ngonadi v London Fire & Civil Defence Authority
[1998] UKEAT 143_98_1006 · 1998-05-13
For the Respondents MR T RESTRICK (of Counsel) Instructed by: Ms L Wilkinson Legal Department Room 611 Main Building London Fire & Civil Defence Authority Fire Brigade Headquarters 8 Albert Embankment London SE1 7SDMR JUSTICE MORISON (PRESIDENT) : This is an appeal against the refusal of the Registrar to grant an extension of time for the lodging of a Notice of Appeal.The brief facts may be stated in this way. By a written decision which was sent to the parties on 8th December 1997 the appellant's complaints of unfair dismissal and dismissal on the grounds of sex discrimination were dismissed.The time limit for instituting an appeal accordingly expired on 19th January 1998. The 42 day time period dates from the date when the document was sent to the parties and not the date when it was received.I am quite prepared to accept that, bearing in mind the state of the post around the Christmas period, the prospective appellant did not receive the decision until 13th December 1997. She instructed solicitors to act on her behalf. She spoke to them on the telephone on 18th December 1997. She was told by the solicitors, according to their letter of 13th January 1998, that she did not have good grounds to appeal on a cursory glance at the extended reasons. The appellant had had the benefit of being represented by Counsel at the Industrial Tribunal.On the same day the appellant told us that she had sent a letter to the Industrial Tribunal requesting, as she put it:
"... for an Appeal, for a fair administration of Justice for the following reasons ..."
She then sets out a whole series of reasons.The Industrial Tribunal say that they have no record of receiving that document. They also say that they have no record of having received another document, which the appellant refers to, namely that dated 27th October 1997 asking the tribunal to review its decision.The appellant told me this morning that she spoke to the Industrial Tribunal on 18th December 1997 before she wrote the letter of that date, enquiring as to why she had not received an acknowledgement to the earlier letter. It is to be noted that there is nothing in the letter of 18th December 1997 that refers to that telephone call or to her earlier letter.On 13th January 1998 her solicitors wrote to her a full letter which said, amongst other things:
"Having looked through the extended reasons for the decision, neither Counsel nor I could see any real grounds of appeal."
The letter continued:
"I am afraid that I do not believe there are any errors of law which you could appeal to the Employment Appeal Tribunal. I know that you shall be disappointed that I have advised in this way. You are of course entitled to seek a second opinion if you so wish. I should remind you that you have 42 days from 8th December 1997 within which to appeal to the Employment Appeal Tribunal, this means that any appeal you wish to bring must be served on the Appeal Tribunal by 19th January 1998."
The appellant responded to that letter by a letter which we have not been shown dated 15th January 1998. From the context of the solicitor's further letter of 20th January 1998, it would appear that she was debating with the solicitors the correctness of their gloomy view as to her prospects of success and whether there were grounds of appeal. The letter from the solicitors dated 20th January 1998 reads as follows:
"Thank you for your letter dated 15th January 1998.
As I explained to you in my previous letter of 13th January 1998, I have carefully considered the extended reasons of the decision of the Industrial Tribunal. Unfortunately, there are no grounds to appeal against the decision and I cannot therefore help you any further.If you still wish to continue with an appeal then I would suggest that you contact another solicitor who may advise you that you do have grounds for appealing. The Law Society ... will be able to provide you with the names of other specialist employment solicitors.Please note that the timing for appealing is 42 days from 8th December 1997. I note from my previous letters your appeal will have to be served on the Appeal Tribunal by 19th January 1998. As this date has now passed you shall need to ask your new solicitors to seek permission to appeal out of time."The appellant then lodged with the Employment Appeal Tribunal a Notice of Appeal seeking an extension of time. This Notice of Appeal was dated 31st January 1998 and was received by the Employment Appeal Tribunal on 4th February 1998. In other words, it was over 2 weeks after the expiry of the time limit. In paragraph 6 of the grounds on which the appeal is brought, the appellant said that she was seeking:
"an extension and would need to apply for leave to appeal out of time (just behind by 10 days), reason for delayed, adviser was not available on time, seeking for a fairer administration of Justice that the tribunal has given the wrongful decision it's been misled by the Respondent (the other party)."
In accordance with our Practice and Procedure the parties were entitled to make and made written representations as to whether time should be extended or not, and the Registrar in the exercise of her discretion, concluded that time should not be extended, by her decision dated 26th February 1998. It is against that decision that this appeal has been brought.The first requirement, as it seems to me, in an appeal of this nature is for the Court to be satisfied that the appellant has presented it with a full and honest explanation for the delay. In this case I have grave doubts about the explanation that has been advanced.The appellant initially said that the reason why she was putting in her Notice of Appeal late was because, effectively, her legal adviser had been guilty of some delay or was not available in time so that she could not lodge an appeal within time. That statement is contained both in the Notice of Appeal to which I have referred, and in a letter dated 24th February 1998 which was sent to the Registrar as part of the submissions.It seems to me that that is not a fair or accurate representation of the true position. The reason why no Notice of Appeal had been filed on her behalf was not because the advisers had been acting negligently, but rather because they took the view that there were no grounds for asserting that the Industrial Tribunal had erred in law, and accordingly, they were not obliged to serve a Notice of Appeal. That advice was given to her within sufficient time for her to have lodged a Notice of Appeal herself had she been minded to do so.The appellant then suggested that her letter of 24th February 1998 should effectively be withdrawn and that there was a different situation to be taken into account as set out in her letter of 4th March 1998. In that letter she refers to the two letters that she said that she had sent to the Industrial tribunal. She also is saying in that letter that her adviser was not available in time.If and in so far as she is saying that the reason for the delay in this case was because she felt that she had already lodged a Notice of Appeal with an Industrial Tribunal, I have no hesitation in rejecting that explanation. Firstly, because the appellant herself accepted that she received with the copy of the extended reasons the leaflet which is provided by Industrial Tribunals which explains the rights of the parties. She frankly accepted that she had had that document. That document makes it abundantly plain where, how and when a Notice of Appeal should be lodged. It is clear from that leaflet that the appropriate body to which an appeal lies is the Employment Appeal Tribunal. She had the benefit of legal advice. It does not appear from any of the letters which we have seen that she was representing to her solicitors that she had lodged a Notice of Appeal with the Industrial Tribunal. It was clear from what the solicitors were telling her that she knew and must have known that it was to the Employment Appeal Tribunal that a Notice of Appeal should be sent. Therefore, even if she sent this letter to the Industrial Tribunal and they did not respond to it, that does not represent, in my view, any sensible excuse for the delay in lodging a Notice of Appeal in this case. She knew what had to be done. She just simply did not do it.In those circumstances, I would have dismissed her appeal on the ground that I was not satisfied that she had given a full and bona fide explanation for the delay in this case. In any event, I would have said that the excuses which were put forward to which I have referred, did not amount to any good excuse for the delay. As I have already indicated, it was not through any fault of her solicitors that there was a delay in lodging a Notice of Appeal. It was not through any fault of the Industrial Tribunal that there had been delay. The only person responsible for the delay is the appellant herself.In those circumstances, on that ground too, I would have dismissed this appeal, but in any event, in the general exercise of my discretion I would not think that this was an appropriate case in which to extend time. I apply the guidelines helpfully set out in United Arab Emirates v Abdelghafar [1995] ICR 65 namely the explanation does provide a good excuse, and are there circumstances which justify the Employment Appeal Tribunal taking the exceptional step of granting an extension of time. It seems to me that none of the excuses should be accepted by the Employment Appeal Tribunal as excusing a late appeal. Overall, looked at in the round I am not prepared to say that any injustice will be caused to this prospective appellant by refusing to extend time, because I am satisfied, as were her advisers, that any potential appeal would be hopeless because there is no error of law disclosed in the Industrial Tribunal's decision, so far as one can tell from perusing it.Accordingly, I dismiss this appeal.