MR W A HUGHES v CPL INDUSTRIES LTD [2000] UKEAT 1496_99_1010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1496_99_1010Case No Appeal No. PA/1496/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W A HUGHESAPPELLANTCPL INDUSTRIES LTDRESPONDENT
Before
Mr Justice LindsayDate 10 October 2000
[1]APPEARANCES For the Appellant MR W A HUGHES In person For the Respondent MS J TINDALL Solicitor Messrs Dibb Lupton Also Solicitors 101 Barbirolli Square Manchester M2 3DL MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Mr W A Hughes in the matter HUGHES v CPL Industries Ltd . Mr Hughes appeals against the Registrar's refusal to extend time for his Notice of Appeal. Today Mr Hughes has appeared before me in person and CPL Industries has been represented by Ms Tindall. I need to say something of the chronology of the matter.[2]On 27 November 1998 Mr Hughes lodged an IT1 for unfair dismissal and some other claims.[3]On 21 December 1998 CPL put in an IT3 resisting that claim.[4]On 29 December 1998 a Directions Hearing was fixed in order to deal with the identification of issues and some other matters. It actually took place (I think) on 19 March 1999.[5]On 6 April 1999 the directions no doubt announced orally at that Directions Hearing was sent to the parties and on 21 April 1999 the Employment Tribunal directed the dates 8th and 9th July 1999 for the full merits hearing.[6]So the matter had been before the Employment Tribunal a number of times and, of course, each time that happens the costs are likely to go up; the costs are likely to be incurred by one side or another or both.[7]On 12 May 1999 the Chairman refused Mr Hughes' application for 11 witness orders, and, again, the making of the request is likely to have increased the costs in the matter.[8]On 9 June 1999 the Tribunal ordered further and better particulars to be supplied by the Applicant, Mr Hughes. In the run up to the date fixed for the full merit's hearing, on 8 and 9 July 1999, further activity took place and the question arose whether Mr Hughes would have to withdraw his application.[9]I do not need to go into the circumstances and I do not know the circumstances but the position that emerged was that eventually under an Order of 28 July 1999 the IT1 that Mr Hughes had lodged was by Order withdrawn. Now, that, of course, meant that the Respondents turned to the consideration of recovery of costs and there must have been considerable costs that they had laid out in the course of the case so far. Thus special hearing was arranged to deal with the question of costs.[10]That took place on 4 October 1999. Mr Hughes did not attend, perhaps not a wise decision, if a decision it was. On 12 October the decision was sent to the parties after the hearing of 4 October which had been at Shrewsbury under the chairmanship of Mr J Haslam. The Decision reads as follows:
"In the opinion of the Tribunal the applicant has, in bringing and conducting these proceedings, acted vexatiously and unreasonably . We order the applicant to pay to the respondent the respondents costs incurred after 19 March 1999 as taxed on County Court Scale 2."
And the decision records that the applicant did not attend. Then it gives extended reasons for the conclusion to which the Tribunal had come. In the ordinary way, the decision is endorsed with the date on which it was sent out to the parties, 12 October 1999.[11]The decision of the Employment Tribunal was sent with a little booklet or sheet that explains that appeals have to be directed to the Employment Appeal Tribunal if there is to be an appeal and that it has to be received by the Employment Appeal Tribunal within 6 weeks from the sending out of the Employment Tribunal's decision. That 6 weeks in this case expired on 23 November 1999 and a critical period in relation to the application before me is what was done by Mr Hughes or his side between 12 October 1999 and 23 November 1999.[12]On 10 December 1999 Mr Hughes put his Date and Signature to a Notice of Appeal, coupled with a request for an extension of time. That was received - and this is the critical date - by the Employment Appeal Tribunal on 13 December 1999. The Notice of Appeal recognises that it is out of time and it was, of course, out of time by some 20 days. The Notice of Appeal is articulate and is some 7 pages of close and careful typing.[13]On 18 April the Registrar refused an extension of time by Order. The Order reads in part as follows:
"AND UPON due consideration of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993 AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused"
[14]On 20 September 2000 Mr Hughes sent in a Skeleton Argument to the Employment Appeal Tribunal. Again it is articulate, carefully laid out and typed. But, as it seems to me, the only passage that relates to considerations now in front of me is at the very end where Mr Hughes writes:
"It was during the period, Spring 1998 up to and including 1999 that my health deteriorated. Along with my wife's health. She was recovering from the side effects of Chemotherapy after her second Cancer surgery. Leaving me in no fit state to attend to my appeals."
[15]I need to make a number of points, having heard Mr Hughes. First of all, a consideration of the merits or otherwise of the underlying appeal is not of great relevance in an Application such as this because otherwise one would have to form a fully informed view as to the success or failure of the Appeal merely on the question of whether the Appeal should be allowed to proceed, which would be an absurd thing to have to do. But I will assume in Mr Hughes' favour that the Appeal, were it permitted to go ahead, would neither obviously fail nor obviously succeed. It might be that that is generous in Mr Hughes' favour.[16]Secondly, allowances, of course, are made by Courts and Tribunals where parties are sick. But where they are chronically sick in the sense that the sickness has continued and is continuing for a period and there is no clear outcome at which one can say that the illness would be recovered from, then the sick persons have to make some form of alternative arrangement as otherwise cases would have to be adjourned indefinitely and finality would never be achieved, which, of course, is likely to be unfair to the other side.[17]Mr Hughes makes no reference to any arrangements that he made for the composition of a Notice of Appeal in the period from 12 October 1999, when the decision was sent to the parties, and 23 November 1999, when the 6 weeks period for the lodging of a Notice of Appeal expired. It is that period which is central to the case. There was no covering medical evidence that I can take to relate to that period which suggests that in that period Mr Hughes suffered any material disability in the sense of his being unable during that period to compose a Notice of Appeal. He does draw my attention to a medical certificate of 28 June 2000 that says this: [It is from the HOPE Medical Centre at Hawarden Road, Hope, near Wrexham. It says: TO WHOM IT MAY CONCERN And it is signed by Dr Deas, DBChB, DRCOG, MRCGP. It says:
"This Patient was treated for severe chronic Gastritis during 1999 which first presented in November 1998. The diagnosis was proven on Endoscopy. He also suffers from an unstable Blood Pressure. This was first picked up in February of this year and is currently under regular surveillance. No treatment has been required yet."
[18]I cannot take that to indicate a material inability to compose a Notice of Appeal in the period October 1999 to November 1999. Mrs Hughes - and I have a body of information about her health - is plainly a lady who has suffered considerable illnesses and operations and is in a poor way. Mr Hughes tells me that she has lots other inconveniences or illnesses, and a permanent colostomy. But the great difficulty that Mr Hughes runs into is that he was plainly able to compose an articulate and well presented Notice of Appeal by 13 December 1999, (indeed, by 10 December 1999, which is the date of his signature and date) and it therefore becomes incumbent upon him to show some change such that whereas during the period to 23 November he was unable to compose one, yet suddenly thereafter and by 10 December 1999 he was able to as he was manifestly, was to do so. This presents a difficulty, which he is, in my judgment, unable to overcome. I have heard nothing that satisfies me that he was unable for medical reasons to compose a Notice of Appeal in the period of 6 weeks from 12 October 1999. Quite plainly, he feels extremely strongly about the underlying merits of the case and the way in which he has been treated and he complains that he has done nothing wrong, that he has merely exposed dishonesty and that he was dismissed in a particularly humiliating and public way.[19]I am not (unfortunately, from his point of view) concerned with that at this stage but concerned to find whether an exceptional reason has been shown why the Notice of Appeal could not have been prepared and lodged in the period of which I have spoken.[20]The Court of Appeal in the recent case Aziz v Bethal Green has dealt with an argument that the Employment Appeal Tribunal's reaction to cases such as these is stricter than is the Court of Appeal then own practice in relation to late Notices of Appeal. But in Aziz the strict line taken in the Employment Appeal Tribunal was not declared to be in any way inappropriate, and in Aziz the leading case, referred time after time at the Employment Appeal Tribunal, namely AbdelGhafar , as referred to in the Registrar's Order, was upheld and followed. And so, without setting out in any detail what the AbdelGhafar and Aziz cases show, I have them in mind and I can not find any exceptional reason of the kind that is required in order to allow me to extend time in Mr Hughes' favour.[21]Notwithstanding that Mr Hughes feels very strongly that he has not been in any way wrong and that he has been unfairly treated, those matters will not, as it seems, now be ruled upon. Simply looking at whether time should be extended in the way that he seeks, I am unable to do so and accordingly must dismiss the Appeal.