MR B CROFTON v (1) MR S YEBOAH (2) LONDON BOROUGH OF HACKNEY [2000] UKEAT 24_99_1704

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 24_99_1704Case No Appeal No. PA/24/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B CROFTONAPPELLANT(1) MR S YEBOAH (2) LONDON BOROUGH OF HACKNEYRESPONDENT
Before
Mr Justice Burton Mr P DawsonDate 17 April 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the First Respondent For the Second Respondent MS K MONAGHAN (of Counsel) Instructed by: Messrs Heald Heffron Solicitors Ashton House 495 Silbury Boulevard Central Milton Keynes MK6 3AH MR T KIBLING (of Counsel) Instructed by: Messrs Nicholson Graham & Jones Solicitors 110 Cannon Street London EC4N 6AR MR JUSTICE BURTON : In this matter, the same Appeal Tribunal on 6th March 2000 gave leave to Mr Crofton to pursue appeals in respect of four of the seven applications that were before the Employment Tribunal at Stratford, heard by Mr Scannell and members, which took, I think, 109 days. Whereas, of course, the strength and arguability of those matters will be heavily contested in due course at the appeal, the issues appeared to us to be arguable. The outcome of the Tribunal was that Mr Crofton was found to have personally discriminated racially against Mr Yeboah, such that several of Mr Yeboah's applications against him succeeded, as they also did against the London Borough of Hackney.[2]It was an extremely heavy matter involving, as I have indicated, a very lengthy hearing indeed, one of the lengthiest if not the lengthiest on record.[3]For some part, if not all, of the hearing, Mr Crofton had the benefit of some assistance from his trade union but not legal representation in terms, and certainly that was no longer the case by the end of the hearing.[4]The liability issue was then followed after the decision on those seven applications below, by a hearing on quantum over three days in October 1998 and the decision is recorded as having been entered and sent to the parties on 10th November 1998; at that stage the Appellant had no further assistance at all and was acting in person.[5]In the interim between the conclusion on liability and the hearing on quantum, the London Borough of Hackney, who had employed both Mr Crofton and Mr Yeboah as senior heads of department, had agreed to pay to Mr Yeboah, the first Respondent, the sum of £380,000 in respect of the findings of racial discrimination against it. That sum included, on the basis of the agreement between the London Borough of Hackney and Mr Yeboah, a sum of £40,000 for general damages including injury to feelings, the balance of £340,000 being in respect of loss of earnings.[6]The Tribunal hearing proceeded, as we indicated, to make a finding against Mr Crofton, and concluded that he should pay, exclusive of interest, the sum of £45,000 as further damages for injury to feelings including a sum of £10,000 for aggravated damages.[7]The result was that Mr Crofton faced a Tribunal judgment of £59,400 and further, in addition, the tribunal made orders in respect of costs of four days of hearing. The Tribunal apparently concluded in paragraph 44 of its decision, when considering Mr Crofton's means to pay costs, that they thought the approximate sum for the costs of the four days was likely to be £4,500, although that was not, they said, in an attempt to constrain any taxing officer, but was relevant to their view of Mr Crofton's means.[8]On the last occasion, we were told by Mr Crofton that the costs which were being sought against him by Mr Yeboah, then represented by the Commission for Racial Equality and also the Council, were very substantially more than £4,500, and so he was facing execution proceedings, as it eventuated, for the sum of nearly £60,000 coupled with unascertained further substantial sums. It appears, and this of course is nothing whatever to do with the Respondents, that his marriage had broken up and he was facing judicial separation and/or maintenance applications in addition and he had left home, so that it was an extraordinarily stressful time for him. I should have indicated that while he was fighting the 109 days in the Employment Tribunal, he continued to be employed by the London Borough of Hackney so that he had to carry on his own job at the same time as running the hearing, but that job was soon afterwards lost to him. So that on the one hand he was no longer employed, but on the other he no longer had the income from that employment.[9]The issues before us today have been as follows:(1) There has been the first of what will undoubtedly be more than one hearing for directions relating to the appeal by Mr Crofton on liability. We have made a number of orders with the helpful involvement of Ms Monaghan as Counsel on behalf of Mr Yeboah, with a view to the resolution of those directions and their further consideration on an adjourned hearing at the end of July. The full hearing will inevitably take at least five days, and will be unlikely to be before the end of this year.(2) The other matter that has been before us today relates to the separate appeal which Mr Crofton seeks to pursue in respect of quantum and the costs. So far as the quantum is concerned, he asserts, without going into any detail, that the sum of £85,000, thus awarded to Mr Yeboah in respect of the racial discrimination suffered him as a result of the now no longer challenged discrimination against him by the Council and the challenged discrimination against him by Mr Crofton, is out of all proportion to an appropriate sum to be awarded in accordance with the principles laid down in the authorities. So far as the costs are concerned, this relates to, as I have indicated earlier, four days, two of which days are intimately inter-related with one of the questions which is the subject matter of the appeal which we have allowed to go forward on liability. It is undoubtedly the case so far a quantum is concerned, that if the Appellant were successful on any of the grounds that he pursues in his appeal, particularly a ground which went, for example, to one of the several incidents in respect of which findings have been made against him, then the question of quantum would, in any event, need to be reconsidered, because the conclusions of the Tribunal, and this itself is one of the matters which is sought to be challenged on appeal, have been taken on a global basis by the Tribunal in assessing them rather than taken severally; so that if any part of their findings fell away, the total would need to be reconsidered.[10]Mr Crofton's case is that he did not receive the decision of the Employment Tribunal, said to have been sent to the parties on 10th November 1998, until he was given it by his daughter, who collected the post from the place from which he had moved, on 16th November 1998. He accepts that that would not support a proposition that it did not in fact arrive until 16th November and his suggestion is that as his daughter collected the post last on 13th November in the morning and passed them on to him later in the day, that it is possible that the decision did arrive in the second post on 13th November and certainly entirely possible that it arrived on 14th November 1998. His suggestion is that in those circumstances it is unlikely that it was posted on 10th November, if it had not arrived by 13th.[11]The rule, so far as appeals are concerned, does not depend upon the date of receipt. Rule 3(2) of the Employment Appeal Tribunal Rules 1993 provides:
"(2) 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 employment tribunal were sent to the appellant …"
And so the date of receipt is not relevant as being determinative, but is only indicative of whether indeed the date of 10th November is an accurate date. Miss Monaghan points out on behalf of the Respondent that, all things being otherwise equal, the Employment Tribunal rules themselves prescribe that the date recorded by the Tribunal on the decision should be taken as the accurate date.[12]Having received the decision on 16th November, if it be right that the date that the time runs from 10th November, Mr Crofton had thus lost some six days out of his 42, but it still left 36 days within which to consider his appeal. His case is that on 22nd December, which is on that basis the last day for putting his appeal against the costs and remedies decision, he did attempt to fax his Notice of Appeal to the Employment Appeal Tribunal. He has no record to show that he did that, because, he says, in fact there was no connection between his telephone, his fax or computer and the Employment Appeal Tribunal, and/or an engaged tone was received, and so it simply was not feasible to send through the Notice of Appeal, albeit that he had no record to that effect, because there was never even any commencement of communication.[13]There is little doubt that at that time of year the Employment Appeal Tribunal fax would have been extremely busy, and it is clear that Morison J accepted, in relation to a similar problem with regard to the sending of Mr Crofton's affidavit in relation to his challenge to the liability decision appeal on the next day, 23rd December, that there were indeed such problems. With regard to that lengthy affidavit, it appears that some part, but nowhere near all, of that fax communication did get through to the EAT fax machine on the 23rd, because as there had been some communication there was therefore a record of its going through, which there was not, if Mr Crofton be right, in relation to his communication on 22nd December. Morison J accepted, therefore, that although there had not been proper communication of the affidavit pursuant to an unless order against Mr Crofton, he should conclude that he accepted Mr Crofton's evidence there had been an attempt to send through that affidavit.[14]The Notice of Appeal not having gone through on 22nd December, Mr Crofton sent it through on 23rd December when it did get through, together with some slim part, as I have indicated, of the affidavit which he had been ordered to provide.[15]Miss Monaghan did suggest that if he had not been able to get the Notice of Appeal through on 22nd December, he could have come up, as she put it, by Jubilee Line train, but we accept that that is, if not an unrealistic suggestion, certainly not one for which Mr Crofton, who was unrepresented, should be criticised. At that very time he was struggling to put together a lengthy affidavit, which he succeeded in doing in time for the next day, albeit that he then had the fax problems, with regard to the liability decision appeal, at a time when he was, as we have indicated, not represented. This is a massive exercise for anyone to carry out against a background of very substantial findings, running to hundreds of pages of decision by the Employment Tribunal in seven different applications and culminating in a very substantial judgment against him, which the Tribunal itself recognises is very considerably more than any previous decision that had ever been given by way of racial discrimination compensation against an individual Respondent.[16]So far as the time period between 16th November, when he received the decision, and 22nd December, when he failed to get his Notice of Appeal through on the fax, Mr Crofton has not given a day by day, week by week or blow by blow account of what he did. But it is apparent to us that he was giving high priority to this case. This is not one of those situations in which it can even begin to be concluded that someone was sitting doing nothing, or had reached a conclusion that they would not appeal or had acted in some way in deliberate flouting of time limits. He says that, at some stage, which Miss Monaghan and Mr Kibling, for the London Borough of Hackney in opposition, rightly point out has not been identified, he was given some legal advice which led him to believe that he did not need to put in an independent appeal against the costs and remedies decision, given his proposed appeal against the liability decision, and then at a later stage, again unparticularised, he was then told that that initial view was wrong, and that he did need to put in an appeal after all. That would not, of itself, be very impressive. But what does appear to us clear is that he was certainly muddled, he was extremely harassed and he was giving substantial attention to his case on liability and on quantum.[17]We then have to address issues which are raised before us today by Mr Kibling and Miss Monaghan. I should say immediately that Mr Kibling's interest in opposing this application is a very limited one indeed. Having paid out £380,000, the London Borough of Hackney has no further interest in the question of compensation, and plainly no interest as to whether Mr Yeboah receives another £60,000 on top. His only interest relates to the question of costs. So far as cost are concerned, two of the four days, which the Appellant seeks to challenge, relate to matters which do not appear to interlink at all with his appeal on liability, except of course that if he were to succeed wholly in respect of liability, then any costs order would be likely to fall. But two of them, as we have indicated, interrelate with one of his appeals on liability, and would be plainly likely to fall if that appeal on liability were in part successful. But, in any event, if the Chairman be right, the amount should not amount to more than some £1,000, being half of the £4,500 split between the two Respondents; of course the claims that they are making for costs are very substantially larger, but certainly that was not what the Chairman had in mind. The financial interest therefore of Mr Kibling's clients in this appeal and/or the prejudice that they could suffer is a very limited one indeed. But they are, as Miss Monaghan is, entitled to oppose the applications by Mr Crofton.[18]Mr Crofton applied to the Registrar for an extension of time, if such extension was necessary, of one day in respect of the Notice of Appeal put in on 23rd December. It appears that an order was made by the Registrar on 5th May 1999 dismissing such application. There is no record on the file that notice of the order was ever sent to anyone, certainly not to Mr Crofton, who says, and indeed said as is recorded by others in a hearing in August 1999, that he had never received any such order, and indeed as will appear in a moment, still believed that his application was being dealt with. It is plain from a document exhibited to Mr Yeboah's affidavit, that there was correspondence with the Commission for Racial Equality later in the year, which suggests that they too had not received any such order, and neither Miss Monaghan nor Mr Kibling today are able to indicate whether either of their clients did receive such an order, because, in both cases, the files have been put away. It appears that there was no specific dealing with this matter at the hearing before Morison J which was restricted to questions of liability in July, although there was a brief mention in the skeleton argument of the Respondent, which was put before him, simply as part of the chronological history. On 10th August 1999, there was a hearing in, I think, the County Court at which Mr Crofton said that his belief was that his application to the Registrar had still not been dealt with. At that stage, Mr Yeboah and the Borough challenged that. Mr Crofton tells us that he believed that it had not yet been dealt with, and was still being dealt with, by virtue of the provisions of rule 20(2) of the 1993 Employment Appeal Tribunal Rules, which state as follows:
"(2) Every interlocutory application other than an application for a restricted reporting order shall be disposed of by the Registrar except that any matter which he thinks should properly be decided by the President or a judge shall be referred by him to the President or a judge, who may dispose of it himself or refer it in whole or in part to the Appeal Tribunal as required to be constituted by paragraph 16(1) and (2) of Schedule 11(a) or refer it back to the Registrar with such directions as he thinks fit."
He did not make any further enquiries of the Employment Appeal Tribunal as to what was happening to his application, nor did either of the Respondents serve him with a copy of the order so as to put beyond doubt the fact that the order had been made. He believed that the matter would, as he put it, be dealt with the next time there was a hearing before the judge.[19]At the hearing on 6th March 2000, when the matter came before us, he asked for his application for an extension of time, which had been made before the Registrar, to be dealt with. At that stage we made an ex parte order that his time for appealing against that order, it by then having become apparent by consideration of the file that there was such an order of 5th May 1999 but no evidence that it could be shown that it had served, so that he could bring on, inter partes, this appeal against that refusal.[20]On that occasion Miss Monaghan with her client, Mr Yeboah, was sitting, as is sensible and proper, at the back of the Court on what was an ex parte preliminary hearing, and Miss Monaghan immediately rose to submit that as we had made that extension of time ex parte, she should be entitled to seek, as she has done today, to set it aside.[21]It is against that background that we have before us today the two matters. First of all the question, on the basis that there is at present an ex parte order to extend the time for appeal from the Registrar's order, as to whether to allow the appeal against the Registrar's order; secondly, bound up with that, although we heard Mr Crofton first, Miss Monaghan's application to set aside that ex parte order allowing an extension of time for appeal against the Registrar's order.[22]It is of course right that the latter question comes first, so far as procedure is concerned, but it must be sensible to look at the merits of the underlying appeal first, as we have done, and we turn to consider that.[23]Miss Monaghan has, understandably and correctly, drawn our attention to the decision of the Employment Appeal Tribunal in United Arab Emirates v Abdelghafar [1995] ICR 65 , and in that case Mummery J, the then President, made clear and underlined the importance of compliance with time limits where the issue related to the making of an appeal against an order of a tribunal below after a full trial on the merits. What was emphasised there was that it was essential for an applicant for an extension of time to give a full and honest explanation of the delay and such must be given, and unless it was given, then no question of consideration of other circumstances would arise. What Mummery J said, at page 71D, was:
"(2) … If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. … (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. …"
The factors that then come into play would include, of course, prejudice to the respondent, not simply the fact, because that would be question begging, that if he were successful in opposing an extension the appeal would go away, but whether there was any specific prejudice caused by any delay, such as, for example, witnesses becoming unavailable, if that was relevant, or, so far as an appeal is concerned, some kind of new development occurring which would render it more inappropriate than otherwise for an appeal so long after the original events to proceed. The question as to whether any procedural abuse, questionable tactics or intention of default arose, would also then be looked at, together with, on the other hand, the merits of the appeal and the length of the delay.[24]It appears to us clear that this approach was considered to be a stringent one by the Court of Appeal when it came to be considered in the case of Suhail Aziz , unreported, in a judgment given on 25th May 1999 by Butler-Sloss LJ. But nevertheless, stringent as it was, it was a matter that was left to the discretion of the Employment Appeal Tribunal in terms by the Court of Appeal. Butler-Sloss LJ said that the words of Mummery J were something to be remembered by those who regularly deal with the Employment Appeal Tribunal and she cited a passage of Mummery J's when he indicated that:
"Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period."
[25]We have been quite clear that the discretion that we have to exercise is one that is very much trammelled by the emphasis that the Employment Appeal Tribunal rightly places upon the need for parties to comply with time limits, once the issue relates to an appeal rather than the trial of the merits.[26]Miss Monaghan has pointed firmly to words used by Mummery J at page 71H as follows:
"… The tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where notice of appeal was served only one day out of time. …"
That plainly gives a discretion to the Tribunal to be very tough, and rule out an appeal even if it is only one day out of time, but the very words used by Mummery J indicate that that would be an exceptional course and that if not normally, certainly within the discretion of the Tribunal; the fact that an appeal is only one day out of time must inevitably be a factor, but it would not be a decisive factor because even a day out of time might still be one day too long.[27]The first question we have to decide is whether in fact the Notice of Appeal was out of time. We conclude that it was out of time. We are sympathetic to the argument by Mr Crofton that it was not sent until after the 10th because it was not received until 13th; it may well be that it was not received, indeed, we accept it was not received until at least 14th November or possibly the afternoon of 13th, which suggests that it may not have been sent on 10th November. But given the record by the Employment Appeal Tribunal, we conclude that it was posted on the 10th and that any delay that occurred resulted from delay in the post, which would not detract from the rule which runs the time from the date when it is posted, not from the date when it is received. We also therefore accept that the time ran out on 22nd December, as Miss Monaghan submits. We do, however, accept the evidence of Mr Crofton that he did make efforts to send the fax on 22nd and it was not his fault that it did not arrive on 22nd, but rather that the problem arose out of the lack of communication between his computer or fax and the Employment Appeal Tribunal fax machine, and we do not consider, particularly given the other obligations he had to fulfil on that day, that it would have been possible for him to make any other arrangements, unrepresented as he was, to get the Notice of Appeal in on that day. The result of that is that one day's delay is one for which he should not be regarded as to blame per se .[28]Miss Monaghan however points out, and understandably points out, Mummery J's words that that is a very good reason why one should not wait until the end of the period to attempt to get one's Notice of Appeal in. She submits that one has to look at the totality of the period, not simply at the last day.[29]We do look, and have looked at the totality of the period. We have concluded that we accept Mr Crofton's evidence that the first six days were lost because he did not receive the decision until 16th November which cut short the period to start with, and we accept that he tried to send it in on the last day.[30]What did Mummery J mean when he implied, and indeed the whole basis of his judgment in our submission is that he indicated, as indeed is the case in the High Court too, that the first question is whether an honest and full explanation is offered. There is nothing odd about that, that is exactly the kind of requirement made by the High Court – see Kleinwort Benson v Barbrak [1987] AC 597 , where a writ requires extension because it has not been served within the period, which very often has limitation consequences - an explanation must be given, and that must be a full and honest explanation. In our judgment, Mummery J did not mean to say that one looks totally in limbo at the explanation, provided one is offered. If a full and honest explanation is offered, which is an absolutely complete answer, then it would be likely that one would not need to proceed any further, unless of course there was evidence of prejudice which would need to be considered. If, for example, the applicant was very seriously ill in hospital and completely hors de combat, that might well be a complete answer which would mean, absent any prejudice, that the extension would be granted, once that explanation had been given, without consideration of any more matters. If the explanation was utterly hopeless or was not given, then it may be that once again the Court would not proceed to consider anything further. But we conclude that if a full and honest explanation is given, which is somewhere in between the two, namely that although it is not a complete explanation, it is a full and honest one, but it is one which would not of itself necessarily be sufficient, then the Court will proceed further, as Mummery J considers that it should, to, for example, consider whether it should "be astute to detect any evidence of procedural abuse, questionable tactics or intentional default." One will look at the "length of the delay" , one will look at the question of prejudice. That is what we have done in this case. We conclude that there has been a full and honest explanation. We do conclude that the appellant was not in any way being astute to be involved in procedural abuse, questionable tactics or intentional default, that he was in fact under very considerable personal pressure quite apart from this case, but that notwithstanding that, he did get on with this case.[31]Mr Crofton was only one day out of time and, but for the bad luck of the fax communication, he would have been in time. We conclude that there are arguable merits to his appeal, on what we have seen, and we conclude that the delay was very minimal indeed. In those circumstances we would conclude, on the second question before us, that within our discretion, looking at the full position of the case, we consider that he ought to be entitled to his one day's extension.[32]We must then consider before making that order as to whether in fact the case is properly before us or not, because of the point made by Miss Monaghan that we should set aside the order we made ex parte extending Mr Crofton's time for leave to appeal against the Registrar's order.[33]We have set out the history already. Miss Monaghan makes the powerfully emotive point that there are 301 days from 5th May 1999, until the appeal was finally pursued. That, in our judgment, is a wholly simplistic way of looking at the position. The position is rather that he did make an application to extend time to the Registrar. We are satisfied that he did not receive the order; whether it was sent remains unproved, but as none of the other parties can show that they received it, it may well be that it was not sent to anyone. It is quite clear that as late as August Mr Crofton still did not know, and indeed expressly said that he did not believe, that the order had yet been made, and believed that the application he made was still outstanding and being considered. He was at no stage thereafter disabused of that belief by the other parties or by the Court. It could certainly be suggested that he should, pursuant to the obligation that any appellant has to pursue the matter diligently, have made his own enquiries of the Court. He was, however, pursuing vigorously his appeal against liability, which was a complicated matter for him to deal with on his own, and was also fending off a number of other legal and other applications in court, both from these parties and others. We conclude, that his belief, mistaken as it may have been, that the reason he had not heard from the Tribunal that pursuant to order 20 rule 2 his application was still being considered, was one under which he laboured, coupled with the belief that he would be able to clarify that as and when he came back before the court on the next occasion, which he did.[34]It is an important question to bear in mind, both on the application for a one day extension and on his application for an extension of time from the order of the Registrar, that this appeal on remedies and costs does not stand alone. It is an important factor when considering our discretion on both aspects that there will be a lengthy and complicated appeal on liability, such as I have previously indicated. There will also inevitably be therefore some consideration of the same issues as would arise on a quantum appeal. If he were successful, as I have indicated earlier, on any aspect of the liability appeal, quantum would inevitably have to be reconsidered. Miss Monaghan, understandably and rightly points out, that if his appeal on liability fails in its entirety, then there would not be any separate consideration of quantum unless his one day extension were granted. But the time that would be added to consideration of the appeal on liability by the considerations on quantum would be very small indeed, certainly before a Tribunal who would have been considering the matter on liability in considerable detail. Given that if he was to succeed in any part quantum would be considered in any event, it would only be if, after a lengthy appeal, he were not to succeed at all that this appeal on costs and remedies would add any length to the appeal, and that would be short, and, in any event, it may well be that the matter would need to be argued altogether before any concluded judgment were given, so that, in fact, the whole matter would be taken in the round. This is not a case in which we conclude on the one hand that a one day delay will always be forgiven. It is equally not a case in which we conclude that because an appellant is appealing on liability he may as well be allowed to appeal on quantum. But both those factors bear in the discretion that we have in any event exercised. That discretion we have exercised after very careful consideration of the guidance of Mummery J in Abdelghafar , as further considered in Aziz . We have considered all the facts put forward by both parties, including the fact pointed out to us by Miss Monaghan, that on 18th December Mr Crofton was still doing his best to try and comply with the time limit, believing at that stage, rightly as we have concluded now, that the time ran from 10th November. We have taken all that into account and conclude that in the exercise of our discretion, we should confirm the ex parte order for an extension of time from the order of the Registrar, and we should grant the one day extension of time required for this appeal on quantum to go forward. We consider the grounds of appeal relating to the quantum of compensation, particularly the comparability of the total sum of £85,000 to a claim for personal injury, to be arguable, and give leave for that and the question of the costs relating to the 1st and 12th December 1997 to be pursued.