MR N RAFIQ v THE BENEFITS AGENCY & OTHERS [2000] UKEAT 5_2000_1801

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 5_2000_1801Case No Appeal No. EAT/5/2000Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N RAFIQAPPELLANTTHE BENEFITS AGENCY & OTHERSRESPONDENT
Before
Mr Justice Charles Mr D A C Lambert Mr J A ScoullerDate 18 January 2000
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR CLIVE SHELDON (of Counsel) Instructed By: Mr A Ekwere Office of the Solicitor Department of Social Security Department of Health Room 523, New Court, 48 Carey Street London WC2A 2LS MR JUSTICE CHARLES : This is an interlocutory appeal. The parties are a Mr Rafiq who is the Applicant in the proceedings. The Respondents are the Benefits Agency and therefore the Crown through the Department of Social Security, and then three individuals, Peter Mathison who is the Chief Executive of that Agency, Rachel Lomax, who is a Permanent Secretary and Alistair Darling, the Social Security Secretary. The appeal brought by Mr Rafiq is against the decision of the Chairman of an Employment Tribunal to extend time for service of the Notice of Appearance to 9 December 1999, which was the day upon which that Notice was received by fax by the Employment Tribunal and, as we understand it, (although I confess I have not done the calculation) that was one day late.[2]The decision is contained in a letter from the Chairman dated 15 December 1999 which contains the following paragraphs:
"Your application for an extension of time in which to enter a Notice of Appearance in this case has been granted by a Chairman and your time for taking this step is extended to 9 December 1999. The Chairman has determined that it would have been reasonably practicable for the respondent to have presented the Notice of Appearance within time. The respondent is therefore treated as having acted unreasonably for the purpose of Rule 12(1) but the Chairman has decided, subject to any representations from the applicant, that it is not appropriate to make an order for costs in the absence of any evidence of loss having been occasioned to the applicant by the respondent's default."
[3]By way of further clarification we have been shown a letter from the Employment Tribunal dated 14 January 2000 to the Solicitor for the Department of Social Security and the Department of Health. That contains following terms:
"Thank you for your fax dated 12 January 2000 requesting the reason behind the extension granted on 15 December 1999. This matter was referred to a Chairman of the Employment Tribunals who has said that the Chairman who granted the extension did so pursuant to Rule 3 (3). Deemed Application."
Rule 3 (3) of the Rules relating to the Employment Tribunals is in the following terms "(3) A notice of appearance which – (a) is presented to the Secretary after the time appointed by this rule for entering appearances, and (b) sets out the reasons why the notice has been presented after that time shall be deemed to include an application under rule 15 for an extension of the time so appointed on the grounds disclosed by those reasons."[4]Mr Rafiq correctly points out and, indeed, it is accepted and inevitably accepted by the Respondents, that the Notice of Appearance which they served did not set out the reasons why the Notice had been presented after the relevant time. It follows that Rule 3 (3) does not apply and therefore the Notice of Appearance is not deemed to include an application under Rule 15. It would therefore follow that the Chairman who considered the matter erred in considering that it did.[5]However, Rule 15 of the Rules relating to the procedure of Employment Tribunals is in the following terms:
"(1) A chairman may, on the application of a party or 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."
It follows that from that rule that a Chairman can extend time of his own motion.[6]The position of this Tribunal is that it has the powers of the Employment Tribunal so it could also extend time of its own motion. Generally the position is that where the Employment Tribunal is exercising a discretion and has erred in law in the exercise of that discretion that this Tribunal will remit the matter to the Employment Tribunal to reconsider the matter applying the correct approach.[7]However, that is subject to the qualification shown, for example, by the decision in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 , that if this Tribunal is of the view that an Employment Tribunal properly directing itself, in the exercise of a discretion, would inevitably reach a particular conclusion, then this Tribunal will exercise the discretion itself. The obvious practicality of that approach is that it saves everybody time and money.[8]Having regard to that background, it seems to us(a) that nothing really turns on the point as to whether or not we should deem the Chairman below to have been exercising of his own motion the power to extend under Rule 15 when, in his own mind, he was thinking that there was a deemed application under Rule 3 (3), and(b) that the correct approach for us to adopt on this appeal is to consider whether or not an extension of time should be granted having regard to all the circumstances and, in particular, the balance of hardship and prejudice, We say that because, if this matter were to be remitted to the Employment Tribunal as Mr Rafiq asks, then an application could be made under Rule 15 and/or the Chairman himself could deal with an extension of his own motion.[9]It was therefore for that reason that we put to Mr Rafiq during the course of his submissions, the point whether or not he could identify any hardship or prejudice to him in the presentation of his case against the Government Agency and the individuals caused by the delay of one day (or of potentially a few days, he having mentioned that he understood that the Notice of Appearance was not served until 12 December 1999).[10]Mr Rafiq was unable to identify any such hardship or prejudice. That is not a criticism of him because the simple fact is there is none. What he did was to concentrate on the technical problems relating to the application of Rule 3 (3) and the point in the Kwik Save case that normally when an error of law has been made the matter would be remitted to the Employment Tribunal to re-exercise its discretion.[11]In our judgment the inability of Mr Rafiq to identify any hardship or prejudice that would be caused to him in the presentation of his case by the grant of an extension of time for serving the Notice of Appearance has the consequence that any Employment Tribunal properly exercising its discretion would, in this case, grant an extension. In reaching that conclusion we have borne in mind that the reason advanced by the Department and thus the Respondents for being late is not "a good reason". The Department should not have been late. As I understand it, they accept that but the provision of a "good reason" is not a prerequisite for the Court exercising its discretion to extend time. The Court takes a view in all the circumstances and has regard to fairness in respect of the determination of the substantive issues.[12]Here, in our judgment, it is overwhelmingly the case that fairness and any balance of the respective position of the parties leads to the conclusion that this application should be tried on its merits and therefore the Respondents should be given a full opportunity to be heard in the proceedings.[13]It follows that we dismiss this appeal. For the avoidance of any doubt we ourselves will grant a further or alternative extension of time in respect of the service of this Notice of Appearance. In doing so we do not grant the extension to any particular date but we indicate that the existing Notice of Appearance should be treated as having been served in time and therefore we grant an extension of time to the date upon which it was served.