MRS D LLOYD-JONES v CHESHIRE COUNTY COUNCIL [1999] UKEAT 67_99_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 67_99_0712Case No Appeal No. PA/67/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D LLOYD-JONESAPPELLANTCHESHIRE COUNTY COUNCILRESPONDENT
Before
Mr Justice LindsayDate 7 December 1999
[1]APPEARANCES For the Appellant MRS J WATSON (Representative) For the Respondents MR M CHAMBERS (of Counsel) Instructed by: Mrs J Dixon Solicitor Cheshire County Council County Hall Chester CH1 1SF MR JUSTICE LINDSAY (PRESIDENT) : I have before me an application in the matter Mrs D Lloyd-Jones v Cheshire County Council . Mrs D Lloyd-Jones appeals and she appeals by way of her representative Mrs Jenni Watson. The appeal by Mrs Lloyd-Jones is against the Registrar's Order refusing the appellant's application for permission to file a Notice of Appeal out of time. The Notice of Appeal was received at the EAT late and, indeed, the appeal against the Registrar's Order is itself late, but I will need to explain the chronology. The matters begins with 12th July 1997, which was the date which Mrs Lloyd-Jones asserted was the date on which she had been dismissed by Cheshire County Council. She lodged an IT1 on 13th August 1997 with the Industrial Tribunal at Liverpool and that IT1 has a box saying:
"If a representative is acting for you please give details"
In that box it says "Mrs J Watson" and an address given and telephone is given for Mrs Watson's and it says "Phone and Fax".[2]On 29th September 1997 Cheshire County Council ['Cheshire'] lodged its IT3 and raised, amongst other issues, the issue of whether Mrs Lloyd-Jones had been dismissed at all as opposed to resigning.[3]Between March and August 1998 there was a very substantial hearing; some 13 days were occupied at the Employment Tribunal in the hearing of the IT1 of Mrs Lloyd-Jones.[4]On 26th August 1998 a decision of some 18 pages in length was sent to the parties and sent therefore, as Mrs Lloyd-Jones had indicated that she was being represented, sent to Mrs Watson, her representative.[5]The decision, which was unanimous, said that the application failed in each category and was accordingly dismissed. Mrs Lloyd-Jones' case had failed completely.[6]Time, in respect of the lodging of a Notice of Appeal, begins to run on the sending to parties, not the receipt by the parties, of the decision. Accordingly, that time expired on 7th October 1998, that is six weeks after the sending out on 26th August 1998. Nothing had been heard from either Mrs Lloyd-Jones or from her representative, Mrs Watson in that six week period.[7]Indeed, nothing was heard until 10th January 1999 when a letter was dated on behalf of Mrs Lloyd-Jones. In fact it is Mrs Lloyd-Jones' own letter to the Registrar at the EAT. It is stamped as having been received on 19th January 1999 - though I am bound to say that the stamp is not perhaps as clear as it might be – though nothing turns on a difference between 10th or 19th January 1999. That letter made an application for an extension of time in which a Notice of Appeal might be lodged. It explains that Mrs Lloyd-Jones had left the United Kingdom on 23rd August 1998 and that the judgment had been sent to her representative on 29th August 1998 (whereas, in fact, as I indicated, it was actually sent on 26th August) Presumably Mrs Lloyd-Jones there speaking of 29th was speaking of the date of receipt by the representative. She says that the representative had then sent it on to her but that she was abroad and that she was in a jurisdiction where censorship exists and that by the time it got to her it was only some two pages long. It had therefore been delayed and censored en route. She said that Mrs Watson had telephoned the EAT in November. Mrs Watson had waited for the appellant's return to the United Kingdom and that she had met Counsel on 7th January 1999. All this was put forward as grounds for an application for an extension of time in which to lodge a Notice of Appeal.[8]There is a Notice of Appeal, it bears the date 15th January 1999 and was actually received on 19th January 1999 at the EAT. It bears the stamp to that effect. It was, therefore, comprehensively out of time.[9]As is the usual practice, the Registrar consulted the respondent, here Cheshire. On 29th January 1999 Cheshire put in a list of reasons why, in its view, there should be no extension of time in this particular case.[10]On 11th February 1999 the Registrar refused the extension and an Order was made to that effect. It says:
"UPON THE application of the Appellant by a letter dated the 10th day of January 1999 for an extension of time in which to enter a Notice of Appeal AND UPON consideration of the aforesaid letter and a letter from the Respondents dated the 29th day of January 1999 and a further letter from the Appellant dated the 10th day of February 1999 IT IS ORDERED that the aforesaid application be refused"
[11]The time prescribed for appealing against such orders is very tight, some five days. One might have therefore expected some activity within a very short period challenging the order of 11th February 1999. In fact, not until 12th August 1999 was it indicated to the EAT that Mrs Lloyd-Jones wished to challenge the order of 11th February 1999 she having now returned, it was said, to the United Kingdom.[12]On 14th August Mrs Watson as National Secretary of Redress, The Bullied Teachers' Support Network, sent a long submission to the Registrar on Mrs Lloyd-Jones' behalf. That was treated as an application for an appeal against the order of 11th February 1999.[13]Reverting to the decision of the Employment Tribunal which was sent to the parties on 26th August 1998, Mrs Watson had the extended reasons by 29th August at the latest. Time, therefore, expired six weeks after 26th August, that is to say 7th October 1998. Although difficulties are spoken of, there is, in fact, no evidence properly so-called laid before me to indicate that there was inability as between Mrs Watson in England and Mrs Lloyd-Jones abroad adequately to communicate with one another in relation to whether there should be an appeal and if so, how it should be framed.[14]Mrs Watson has spoken this morning of her belief that there was no fax open to Mrs Lloyd-Jones or e-mail open to her, but there is no indication that she was unable to telephone Mrs Watson in England or that Mrs Watson was unable to communicate by telephone to Mrs Lloyd-Jones, even if it might have been by way of Mrs Lloyd-Jones turning up at some public telephone. It seems to me that the absence of adequate evidence on the subject must lead me to conclude that I cannot rely upon there being a real inability as between Mrs Watson in England and Mrs Lloyd-Jones abroad to communicate with one another sufficiently to have enabled Mrs Lloyd-Jones to be told the nature of the decision of the tribunal and to discuss whether and how and in what terms to lodge a Notice of Appeal.[15]Moreover, as I have mentioned earlier, the extension order being refused by the Registrar on 11th February 1999 should have led to a really accelerated response on the part of Mrs Lloyd-Jones or Mrs Watson. Yet, again, there is a huge period, from 11th February to 12th August 1999 where nothing seemed to be done. Again, there is an inadequate explanation of the failure earlier to act during that period.[16]I have in mind the leading case in this area, United Arab Emirates v Abdelghafar [1995] ICR 65 . It seems to me here, especially given the total absence of real evidence properly so-called, that I must regard the explanations given as inadequate. The delay is insufficiently explained. It is something of a privilege to be granted an extension of time. The longer the delay, the more compelling the case needs to be if that privilege is to be obtained by an applicant. Here, it seems to me, no compelling case whatsoever is made for an extension of time and accordingly I dismiss Mrs Lloyd-Jones' appeal. MR JUSTICE LINDSAY (PRESIDENT) : In this matter Cheshire makes an application for costs under Employment Appeal Tribunal Rule 34 on the ground that it should appear to the Appeal Tribunal that the application before me today was either unnecessary, improper or vexatious and that there had been unreasonable delay and unreasonable conduct in bringing or conducting the proceedings. If such is upheld, then the tribunal here has the ability to order the party at fault to pay the whole or such part of the costs as it thinks fit. Rule 34(2) provides the alternatives of assessment or taxation. It does seem to me that this is a case where the conduct of Mrs Lloyd-Jones or Mrs Watson, her representative, has been unreasonable in the sense that when the extension of time in which to lodge a Notice of Appeal was refused on 11th February 1999, then it should have dawned that to go further was certainly, in absence of compelling evidence, a hopeless exercise. It has proved to be a hopeless exercise. But that should have dawned not much later than 11th February 1999. I have therefore invited Mr Chambers, appearing for Cheshire, to give me some breakdown of costs incurred by Cheshire since 11th February 1999. He has provided a schedule that comes to the total of £2,153.75. I am not prepared to make an order of anything of that magnitude. It seems, for example, that 10 hours preparation after 11th February 1999 on behalf of the solicitors must surely have been excessive. But that some payment is appropriate, as it seems to me, is correct. Doing the best I can in this rather robust jurisdiction, I require Mrs Lloyd-Jones to pay to Cheshire the sum of £850 by way of costs ordered under Rule 34.