Taukoorchand & Anor v St Helier NHS Trust [1999] UKEAT 244_98_0507

EAT
Taukoorchand & Anor v St Helier NHS Trust
[1999] UKEAT 244_98_0507 · 1999-06-10
MR JUSTICE MORISON (PRESIDENT) : This is a renewed appeal against the refusal of the Registrar to extend time so as to enable the Employment Appeal Tribunal to consider a Notice of Appeal, which the appellants wish to pursue against the decision of an Employment Tribunal, which unanimously rejected their complaints of unfair dismissal.The matter was before the Employment Appeal Tribunal on an appeal on an earlier occasion when Mr Banerjee of Counsel invited me to adjourn because he recognised that there were further enquiries that could be made of his instructing solicitors to establish what the facts were which would go to determine whether there was reasonable excuse for the late lodging of the Notice of Appeal.The Notice of Appeal was received by the Employment Appeal Tribunal 19 days out of time, although it is the contention of the appellants that their solicitors in fact sent the Notice of Appeal within time, namely on 3 rd February 1998 and that there was some kind of postal error which accounted for it not having been received until it was on 2 nd March 1998.So the first question I must ask myself was what was the explanation for the delay in getting the Notice of Appeal to us. The explanation that is offered is this: that Mr Banerjee, who had represented the appellants before the Employment Tribunal, had discussed with his clients after the hearing, when the essential decision had been announced, the prospects of an appeal and had been instructed at that time to serve a Notice of Appeal. He then proceeded to draft the grounds of appeal, having received a copy of the written decision of the Employment Tribunal, and with an entirely appropriate note, he sent to Mr Saujani, the solicitor, the grounds of appeal, two appeal forms, a copy of the decision of the tribunal and some other documents. Mr Banerjee's note reads:
"You may see that time limit to file an appeal to EAT is 42 days from the decision. You may send their appeal this week. Please enclose a copy of the decision with the form.

Thank you"

That note, as I say, is dated 26 th January 1998.In the papers there is a copy of the grounds of appeal running to three pages with Mr Banerjee's name at the bottom which was written on by Mr Saujani, the solicitor, and underneath the name is written:
"Filed and served this 30 th day of January 1998 by J V Saujani & Co Solicitors … on behalf of the Applicants."
Therefore, according to this document, the date for posting was 30 th January 1998, which was a Friday.The solicitors have produced an extract from their post book which they say shows that a document was sent on 3 rd February 1998, which was a Tuesday. The extract from the post book says simply for 3 rd February "Tribunal Employment". In other words, it does not indicate the Employment Appeal Tribunal and does not indicate the case to which that communication related.I raised with Mr Banerjee the question as to why it was that on 30 th January 1998, assuming that Mr Saujani did not backdate the document, he had indicated that the document was filed and served on 30 th January 1998, yet the post book entry was for 3 rd February 1998.The position cannot be properly explained. What was said in a letter to the Registrar of the Employment Appeal Tribunal on 3 rd April 1998 was this:
"The entry 'Tribunal Employment' for 3 rd February 1997 related to the missing 30 th January 1998 letter and the appeal documents enclosed with it. The entry was made on the day of posting, ie the 3 rd February 1998, the letter having been typed and dated on the previous Friday and read for signature. We do not understand the reference in Capsticks' letter to 'a higher standard' being expected."
I have to say that I am not satisfied on the evidence, with which I have been provided that this Notice of Appeal was posted to the Employment Appeal Tribunal on 3 rd February 1998, as is alleged. It seems to me that what was said in the letter of 3 rd April 1998 is contradicted by what was written by Mr Saujani on the grounds of appeal, which showed that the document was being filed and served on 30 th January 1998. I am persuaded, that as an honest solicitor, Mr Saujani would not have added at the bottom of the grounds of appeal a date for filing and serving which was in any way backdated. It follows, therefore, that he must have approved the draft and completed the words in relation to service on Friday, 30 th January 1998. That being so, what was said in the letter of 3 rd April 1998 does not appear to me to be consistent with the facts. It may well be that Mr Saujani having completed the documentation on 30 th January 1998, put it out for posting but that it never in fact was posted. There is no indication in the postal book to show that this was a document sent to the Employment Appeal Tribunal and although Mr Saujani says in an affidavit that this was the only current employment law matter that he was dealing with, I am by no means persuaded that the extract from a postal book, given the surrounding circumstances, evidences an actual posting of the documents on that day.Mr Banerjee says that if I had been satisfied that postage had occurred on 3 rd February 1998, then by reason of the rules as to service been deemed to have occurred in the normal course of post, even if the document had not been received, the Employment Appeal Tribunal was deemed to have been served about 5 th February, that is two days after the date when the letter was posted.I do not deal with that argument, ably though it was presented, because of my conclusion that I am not persuaded on a balance of probabilities that the document was sent.In support of the contention that it was sent, Mr Banerjee very properly drew my attention to the expression of astonishment and surprise which Mr Saujani demonstrated when he became aware in March that the Notice of Appeal had not been received by the Employment Appeal Tribunal. Mr Banerjee invited me to say that that expression of surprise was a good indication that Mr Saujani was behaving in an honest way and must have been confident that the document had been posted.I agree that it shows that Mr Saujani believed that the document had been posted. I do not agree that it adds anything to the issue as to whether or not the document had in fact been posted as alleged on 3 rd February 1998.In all those circumstances, therefore, I am not persuaded that this is a case where the Registrar has erred in law. In the exercise of my discretion, taking into account all the relevant circumstances, I am satisfied that this is not a case where time should be extended so as to allow the appeal to be entertained.The appeal against the Registrar's order will therefore be dismissed.