Mock v Inland Revenue [1999] UKEAT 997_98_0103

EAT
Mock v Inland Revenue
[1999] UKEAT 997_98_0103 · 1999-03-01
MR JUSTICE MORISON (PRESIDENT) : In this appeal the first question is what is the date from which time starts to run for the purposes of calculating the 42 day period within which a Notice of Appeal must be served.Rule 3(2) of the Employment Appeal Tribunal Rules 1993 provide as follows:
"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the Industrial Tribunal were sent to the Appellant, or, in the case of an appeal from a decision of the Certification Officer, 42 days from the date on which the written record of that decision was so sent."
The question at issue is what is meant by the word "date on which extended written reasons for the decision or order of the Industrial Tribunal were sent to the Appellant".It is the Appellant's submission, through Ms Belgrave, to whom I am grateful, that by reason of the provisions of Rule 35 of the Employment Appeal Tribunal Rules 1993 and/or Section 7 of the Interpretation Act 1978 the words "were sent" mean "were received".Rule 35 provides that any notice or other document required or authorised by these Rules to be served on, or delivered to any person may be sent to him by post. There is also provision in that Rule for deeming service to be effected in the absence of any evidence to the contrary. There are documents required to be served on the EAT such as a Notice of Appeal and other documents required to be served by the EAT on the parties to which Rule 35 applies.It is the submission of counsel on behalf of the Commissioners of Inland Revenue that the words in rule 3(2) mean and can only mean the date when the document was transmitted to the person concerned and that this is a provision which does not relate to service of documents but relates to a mechanism by which time can be calculated for serving the Notice of Appeal.This is not the first time that this point has been raised. I am satisfied that the submission of Counsel for the Commissioners is correct. Section 7 of the Interpretation Act 1978 provides that:-
"Where an Act authorises or requires any document to be served by post (whether the expression "served" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be affected by properly addressing, prepaying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
It is to be observed that this is a provision in a statute dealing with service by post. It is specifying the way in which service may be effected and when such service is deemed to have been effected. Rule 3(2) of the Employment Appeal Tribunal Rules is not dealing with service by post. It is dealing with the calculation of the date from which time starts to run for the purposes of serving a Notice of Appeal. In my view a proper understanding of Section 7 tends inevitably to the conclusion that it does not apply to Rule 3(2) of the Employment Appeal Tribunal Rules.It is submitted that such a conclusion is inconsistent with two other decisions of the Employment Appeal Tribunal. The first is Immigration Advisory Service v Oomen [1997] ICR 683. That case was concerned with the proper construction of Rule 7(7) of the Industrial Tribunal (Constitution etc.) Regulations 1993 Schedule 1, Rules of Procedure . If that case purports to cast any light on the question at issue in this appeal I respectfully disagree with it. It seems to be important to recognise Section 7 for what it is, namely a statutory provision which applies, unless a contrary intention appears, to legislatgion or rules requiring or authorising documents to be served by post.The second decision, namely Derrybaa Limited v Castro-Blanco [1986] ICR 546 equally as it seems to me has no direct bearing on the question at issue. That was a decision cited in Oomen. It seems to me also that if that case is saying anything different from this judgment it is not to be followed in future.Researches suggest the only other provision of the Employment Appeal Tribunal Rules in which the words "sent" is used is in Rule 22(9) but the context of that rule makes it plain there is no room for the application of Section 7 because it refers to a date as being the date recorded on which the particular document was sent to the parties.In my view the scheme of the legislation is plain. Industrial Tribunal chairmen are required to produce reasons. When reduced to writing, it is the responsibility of the clerk to transmit those reasons to the secretary who enters them in the register and sends a copy to the parties. A copy of the entry is attached to the decision. It follows that at the end of the decision there is inserted a date which specifies when the document was entered into the register. That provides a fixed date and explains why Rule 3(2) refers to the date on which extended written reasons were sent to the Appellant. This is itself a reflection of Rule 10 of the Industrial Tribunal (Constitution etc.) Regulations 1993 Schedule 1, Rules of Procedure . The context of the Rules tends inevitably to the view that "was sent" means when it was sent i.e. the date from which time starts to run. This was the clear intention of Parliament. There is no room for the application of Section 7 if it would otherwise have applied. The Rule is defining a specific date at which an act was done.This accords with justice and practicality. It provides a clear date from which time for appeal is to be calculated. It accords with the practice as it has always been understood. Both parties then know when the time for appeal has expired. The suggestion of Ms Belgrave would lead to great practical difficulty and injustice to parties.I am therefore satisfied that this appeal is one day out of time. The next question is whether I should extend the time. The delay was caused by a computer failure which affected the computer of Counsel then acting on behalf of the Appellant, who was not Ms Belgrave. The computer failure occurred at the last minute. This does not provide a satisfactory explanation or excuse. It is the duty of lawyers to present appeals in time. The limit is a limit and not a target. There were alternative means by which the Notice of Appeal could have been presented in time. In the circumstances I am not prepared to extend the time for appeal and dismiss the appeal against the Registrar's Order. Therefore this appeal will not be entertained.I would like to thank both Counsels for their help in difficult circumstances, in that we are, this morning, without power.