MR S J LINDSAY v CUMBRIA COUNTY COUNCIL & OTHERS [1999] UKEAT 886_99_2611

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 886_99_2611

Case No Appeal No. EAT/886/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S J LINDSAYAPPELLANT

CUMBRIA COUNTY COUNCIL & OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 26 November 1999

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE LINDAY (PRESIDENT) : We have before us, by way of preliminary hearing, the appeal of Mr Stephen John Lindsay in the matter of Lindsay v Cumbria County Council and others . Two matters are appealed against. The first is the decision of a Chairman on 26th June 1998 not to extend time for an application for a review of the decision of 26th October 1994. The second is a decision of 4th June 1999 not to entertain an application for a review of that decision. The Notice of Appeal is dated 14th June and was received by the EAT on 16th June 1999.

[2]It is necessary to say something of the history of the matter. On 7th October 1993 Mr Lindsay lodged an IT1 with the Industrial Tribunal claiming contravention of the Sex Discrimination Act 1975 . There was a three-day hearing on 21st, 22nd and 23rd September 1994 at Carlisle of the matter Lindsay v Cumbria County Council and others . On 26th October 1994 the decision was sent to the parties. The decision said:

"The unanimous decision of the Tribunal is that the applicant has not been discriminated against pursuant to the Sex Discrimination Act 1975."

There is no appeal against that decision or, at any rate, none in this bundle of papers that we have.

[3]On 24th June 1998 Mr Lindsay made an application for an extension of time in order to lodge an application for a review of that decision. On 24th June 1998 that application was declined. The order made on that day says this:

"The application by Mr Stephen John Lindsay for an extension of time to apply for a review of the decision of the Tribunal which was entered in the register and sent to the parties on 26 October 1994 is refused."

There were then extended reasons annexed to that.

[4]On 30th May 1999 Mr Lindsay asked for the decision to be reviewed. On 4th June 1999 the Regional Chairman indicated that he would not entertain the application for a review. He said quite simply:

"I acknowledge your letter dated 30 May 1999. I am not prepared to consider matters further in this case."

[5]On 14th June there was a Notice of Appeal put in by Mr Lindsay:

"I appeal on the following ground:- Under the United National International Covenant on Civil and Political Rights I am entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. If I do not get such a hearing I am entitled to an "effective remedy", not withstanding that the violation has been committed by persons acting in an official capacity. The State undertakes to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy. … By failing to extend time and therefore failing to determine my right to an effective remedy by way of review is a violation of my rights afforded under Article 2 of Part II of the International Covenant on Civil and Political Rights …"

[6]Mr Lindsay's skeleton argument entitled "Outline submission for the appellant" amplifies the point by saying in paragraph 3.1:

"It is difficult to reconcile the Employment Tribunal, Rules of Procedure, with the provisions of the United Nations International Covenant on Civil and Political Rights."

[7]We ought first to turn to the Employment Tribunal Rules, so far as they concern the subject of review. Rule 11 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 Schedule 1 says:

"11.-(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that- (a) the decision was wrongly made as a result of an error on the part of the tribunal staff; … (e) the interests of justice require such a review."

Rule 11(4) says:

"An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."

Rule 15 goes on to say:

"(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired. (2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application. (3) The Secretary shall give notice to each of the parties of any extension of time granted under this rule."

[8]As we have reminded Mr Lindsay, who has appeared before us today in person and has addressed us with moderation in amplification of his outline submissions, every legal system ever devised has had to have within it and has had within it some rules regulating the times within which a particular legal decision can be vulnerable to challenge. The use of Latin is now discouraged but even the Romans had a rule which they expressed in the maxim "interest reipublicae finis sut litium" , meaning that there is a public interest in achieving finality in litigation, because otherwise cases would tend to run on forever. Here in England in 1999 if a decision at the Employment Tribunal goes against a party he or she has 42 days after the date when the extended reasons are sent from the Employment Tribunal within which he or she may appeal. Also, as we have seen, there is an ability to reopen a case by way of review (as we have cited from the Rules). These periods have been fixed by or with the approval of Parliament. It is Parliament that is the chief arbitrator of how the public interest in having some finality to litigation is best served and it has elected to serve that interest by providing approval of the Rules to which we have referred. If Mr Lindsay could show to us that the prescribed time limits (prescribed by English domestic legislation) were inconsistent with the decisions of the European Court of Justice or with Community Directives we would have to adopt the latter in place of the domestic legislation, but he has not been able to show us any such thing. If, alternatively, Mr Lindsay had shown that domestic legislation was ambiguous and that United Kingdom Treaty obligations suggested how the ambiguity was to be resolved, then we would gladly resolve the ambiguity in such a way as to be consistent, as far as possible, with the Treaty obligations. But no such ambiguity has been demonstrated either. Moreover, the Human Rights legislation, although not yet in force, can be anticipated in some circumstances so that Courts are entitled to take the view that what will shortly be a breach can or ought to be avoided even now, even before, technically, it is a breach of our own law. But we have not been able to detect any such prospective breach of Human Rights legislation in Mr Lindsay's case.

[9]Turning to the case in a little more detail. The decision of 26th October 1994 was not appealed against. No acceptable reasons were given for the delay since 26th October 1994 in seeking to extend time for applying for a review in June 1998. There is now no possible assurance that the matters complained of in 1994 (which themselves go back to 1992,) could still be satisfactorily investigated. So any reopening of the litigation would be such that it would need to have the most compelling of reasons advanced before that reopening would be likely to take place. Mr Lindsay failed to appeal the decision of 24th June 1998 within the period allowed.

[10]No reasons that we have seen for an extension of time are such as would satisfy the leading case giving guidance in this area, United Arab Emirates v Abdelghafar . Moreover, as the Chairman points out, Mr Lindsay was well aware of the ability to appeal and the ability to review. We have not been able to detect any error of law in the Chairman's decision sent to Mr Lindsay on 24th June 1998.

[11]Turning to the other limb of matters under appeal, in other words, the decision of 4th June 1999, as we have mentioned earlier, it is terse to a degree. The Regional Chairman says:

"… I am not prepared to consider matters further in this case."

That was in response to a letter from Mr Lindsay on 30th May 1999. That letter claimed:

"I seek a review of the decision not to extend time for review given by the Regional Chairman Mr D Reed, decision dated June 24th 1998. The decision is a violation of the various Articles set out in the United National International Bill of Human Rights which is ratified by the United Kingdom and Northern Ireland and which came into effect in 1976. The COVENANT ON CIVIL AND POLITICAL RIGHTS has the force of law for the countries that ratify THE COVENANT."

[12]There is room for doubting whether there can be an appeal against a refusal to extend time for the lodging of an application for review. The lodging of an appeal contemplates the prior receipt of extended reasons - see EAT Rule 3(1)(c) and 3(2). Yet extended reasons are not prescribed in this particular area - see ET Rule 10. However, assuming in Mr Lindsay's favour that an appeal is permissible, there is nothing, we think, in the Notice of Appeal and skeleton argument, nor in what we have heard this morning, that suggests to us any defect of substantive law on the Chairman's part. So far as concerns procedural law, normally reasons need to be given for a decision, but there can come a point at which a decision speaks for itself and this is such a case.

[13]Mr Lindsay has drawn our attention to the remarks of Lord Oliver of Aylmerton, a very distinguished lawyer, in the House of Lords on the crucial importance of judicial independence and the need for impartiality. But we have no reason laid before us to consider that there was anything unindependent or partial in the decision of 26th October 1994, which is the starting point of Mr Lindsay's complaints.

[14]Mr Lindsay before us today has repeated attacks on matters that occurred before October 1994. But, surely, if he needs to make a case for a late consideration or reopening of the decision of October 1994, he really needs to point to defects in that decision and for him to point to defects, as they might be alleged to be, in respect of earlier decisions takes him no further forward. He has referred us to the case in 1978 of R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford Metropolitan City Council

[1979] 2 All ER 881

(CA) . He has particularly referred us to the meaning of the words "maladministration". But we fail to see how that assists him in the task that he has today. He seek to explain his failure to appeal earlier by saying that he was threatened with costs. But that seems a strange argument because it would lead logically to him never appealing rather than to his appealing late, at all events unless some change in his financial circumstances explained, which it was not.

[15]We have considered his outline submissions in relation to Human Rights legislation and the United Nations Covenant but we are unable to find anything of relevance there to the much more procedural aspects with which we are concerned. It cannot be said that there is no adequate remedy given to a party simply because, when he seeks to exercise that remedy it leads to a finding against him. Indeed, Mr Lindsay has accepted in his argument in terms this morning that the logical conclusion of his argument would be that every application for an extension of time must be met with the granting of an extension. That, we think, vividly indicates the fallacy in Mr Lindsay's position.

[16]We are not able to detect any error of law – and it is only errors of law with which we are concerned here – in the two matters that are appealed in this particular preliminary hearing and, accordingly, we must dismiss the matters even at this preliminary stage.