DR A ABEGAZE v BRITISH TELECOMMUNICATIONS PLC [2000] UKEAT 1450_99_1205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1450_99_1205

Case No Appeal No. EAT/1450/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A ABEGAZEAPPELLANT

BRITISH TELECOMMUNICATIONS PLCRESPONDENT

Before

Mr Justice Lindsay

Date 12 May 2000

[1]APPEARANCES For the Appellant IN PERSON For the Respondents MISS E GRAY (Solicitor) Instructed By: Mr A Whitfield Solicitor Group Legal Services 81 Newgate Street London EC1A 7AJ MR JUSTICE LINDSAY (PRESIDENT) : I have before me applications in the matter Dr Abegaze against British Telecommunications Plc. The applications are made in appeal number

EAT/1450/99

. On 7 February 2000 a Notice of Hearing giving today's date was sent to both sides. It was sent to Dr Abegaze appearing in person as the Appellant and the notice is also addressed to the Solicitor for the Respondent, BT.

[2]The notice does not specify what precisely was understood to be in issue today, in terms of what relief either side were going to be asking for, and that has not become clear until oral address today. Dr Abegaze, as I indicated, appears in person and he is concerned in two respects, as I have understood it. Firstly, he seeks to ensure as best he can that he is in a position to appeal against a decision sent to the parties on 13 May 1999. The other respect in which he asks for relief is that he wants it clarified that he is entitled to pursue his appeal or appeals in an amplified version, as he describes it, rather than in the original version of his Notice of Appeal. Those, as I have understood it, emerge as the two matters that I need to deal with.

[3]So far as concerns the ET's decision of 13 May 1999, that was a decision after a hearing on 26 April before Mr D.R. Crome as Chairman and Mr Francis and Mr Vinookumar as lay members and the unanimous decision, which was by way of review, was that an earlier decision was set aside, that the Respondent, BT, was restored to the hearing and that the matter should continue in the ordinary way for a substantive hearing.

[4]So far as concerns appeal against that decision, time would have expired therefore six weeks from 13 May 1999. There was no Notice of Appeal of any character within those six weeks and accordingly Dr Abegaze is not entitled to pursue an appeal against the decision of 13 May as such unless he applies for an extension of time in which to lodge a Notice and is granted that extension. He has not, in fact, as I have understood it, applied for an extension of time and, of course, therefore has not been granted it. The matter did go forward to a substantive hearing. It was heard on 21 and 22 July 1999 before the very same three members and, after that hearing in July 1999, on 27 September 1999 the decision was sent to the parties. It was unanimous. It reads as follows:

"The unanimous decision of the Tribunal is that: 1. The respondent's [BT's] application to review the decision of 17 April 1998 as to paragraphs (2) and (3) is allowed to proceed. 2. The application for a review succeeds and the decision at paragraphs (2) and (3) promulgated on 17 April 1998 is set aside. 3. The respondent's application to strike out the application pursuant to the provisions of Rule 13(2)(e) succeeds and the application is dismissed."

So to that extent Dr Abegaze appeared to suffer a considerable blow. The Applicant's application to review a decision of 17 May was also dismissed.

[5]As to that substantive decision sent out, as I have indicated, to the parties on 27 September, that met with a document headed "Application by the Applicant for Review of Tribunal Decision promongulgated (sic) on 13 May and 27 September 1999". Dr Abegaze frankly says that it is a mistake to call it an application for a review. It truly is, at least in part, an application for appeal against the Tribunal decisions there mentioned and, on the face of things, appears to cover the decision of 13 May and 27 September 1999. That was the original version of a document which, perhaps generously, one can call a Notice of Appeal and it was received by the EAT on 4 November 1999 and hence was in time so far as concerned the decision of 27 September. It was, of course, out of time so far as concerned the decision of 13 May.

[6]Dr Abegaze says that the appeal against the decision of 27 September in effect includes an appeal against the decision of 13 May and that on that basis he should be permitted to appeal against the decision of 13 May. I have not understood why an appeal against the decision of 13 May should be permitted out of time and, of course, considerably out of time, given that Dr Abegaze is in time so far as concerns an appeal against the decision of 27 September. I see no good reason to extend time to allow a separate appeal as against the decision of 13 May. As I mentioned earlier, there has not in fact been a formal or any application for an extension of time and, if there had been, there would have had to be a most compelling reason indicated to explain the delay. However, there has not been such an application and I have no reason to think, on what I have told, that had it been made it would have succeeded. So the position is that there cannot now be an appeal against the separate decision of 13 May.

[7]The next question that needs to be attended to is how far, if at all, Dr Abegaze should be given leave to amend, departing from the original version headed "Application by the Applicant for a Review" as received on 4 November, to a later version that begins "Notice of Appeal by Dr Abergaze against the decision of the Tribunal promongulated (sic) on the 13 May and 27 September 1999" which is stamped "Received by the EAT on 4 February 2000". This latter document is in more than one typescript as it goes ahead and in the present bundle runs from page 1(d) to page 41. Dr Abegaze describes this as merely an amplification of the earlier version received on 4 November and to that extent, he says, leave to amend is unnecessary because it is merely an amplification. That might be, so to speak, a layman's response but it is not a proper response. Even a single word can represent an amendment and, indeed, if the two versions were absolutely identical then, of course, the second would be unnecessary. The moment it is accepted that the two versions differ, not necessarily in sense but even merely in language, then leave to amend is necessary. Leave to amend has not yet been granted and the question is, should I grant it? As to that, the Respondent, British Telecommunications, have not received the document until today, as I understand it. Even if they have received today the full version - page 1 (d) to page 41 - Miss Gray for BT makes the point that it would need to be considered how far the new form merely set out in different language the old form and whether, accordingly BT wishes to oppose or could accept the amendments that are there. I am not prepared to grant leave to amend today on that loose basis, namely that BT are entitled to have time to consider the two versions and the differences between them and to form the view as to how far they can agree and how far they would wish to disagree.

[8]However, as I understand it, there is to be a preliminary hearing of Dr Abegaze's appeal and possibly also some form of cross-appeal on 6 July, not all that far away. The date so far fixed is fixed only as a provisional date because Dr Abegaze has asked for the attendance, if at all possible, of a particular EAT lay member and that lay member's ability to attend has not yet been confirmed. But I shall take it that 6 July is at least a provisional date for a preliminary hearing of Dr Abegaze's Notice of Appeal.

[9]On that basis, I direct as follows. First of all, whichever version he wishes to pursue by way of a Notice of Appeal, Dr Abegaze will need to amend it to take out such grounds of appeal as refer, and refer only, to the decision of 13 May 1999. He is not able to appeal against that as a separate decision and therefore reference in whatever Notice of Appeal he wishes to pursue to appeal against the decision of that day needs to be taken out. So that is a form of amendment that he must set about. As he does set about that form of amendment, he is to bear in mind also that only points of law can be appealed to the EAT and that it would be prudent for him, as he is considering amendment, to prune his proposed Notice of Appeal to take out material that does not amount to an allegation of error of law. I am not going to seek to do that today but as he is amending in any case it would be right for him to consider that which is not allegation of error of law. I adjourn to the preliminary hearing, whether it is on 6 July or whatever other date occurs, of his application for leave to amend from the 4 November version to the later version found, at the moment, at pages 1 (d) to pages 41.

[10]The preliminary hearing on 6 July, in the ordinary way as a preliminary hearing, would be attended only by the Appellant but, as I understand it, the Respondent BT will be attending because they have some form of cross-application. But even if that is wrong, I direct that the preliminary hearing should also include an inter partes hearing of the application, which I have just adjourned, for leave to amend the Notice of Appeal. I have indicated that Dr Abegaze must amend to take out the attack on the decision of 13 May and also that he is to seek to prune the Notice of Appeal at the same time. I will ask him in a moment to how long he is going to need to do that, but the object of the exercise will be that, by the time the preliminary hearing is reached and the parties gather to consider their arguments for and against leave to amend, they will have both had in their hands the new proposals of Dr Abegaze in sufficient time adequately to have considered the matter.

[11]So it remains now for me to ask Dr Abegaze how soon he can complete an amendment of his Notice of Appeal, whichever form he wishes to pursue, to take out reference to the decision of 13 May and also to prune it in the way that I have indicated. [After discussion of the time needed] I give leave to Dr Abegaze to amend whichever form of Notice of Appeal he wishes to be considered to take out grounds relating to the decision of 13 May, by 1 June. He has got to reserve the amended version by 1 June 2000. [After Dr Abegaze has applied for leave to appeal] I refuse leave to appeal because I do not think I have sufficiently misunderstood the case. I think my judgment meets the case. I thereby do not see you as having a reasonable prospect of success but, of course, you are entitled to go to the Court of Appeal.