MR W MORGAN v SWANSEA COLLEGE [2000] UKEAT 677_99_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 677_99_0702Case No Appeal No. PA/677/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W MORGANAPPELLANTSWANSEA COLLEGERESPONDENT
Before
Mr Justice LindsayDate 7 February 2000
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR A REES (Solicitor) Morgan Cole PO Box 45 Princess House Princess Way Swansea SA1 3LJ MR JUSTICE LINDSAY (PRESIDENT) : I have before me this afternoon the adjourned hearing of an appeal by Mr W. Morgan in the matter of Morgan against Swansea College. The appeal is against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. Mr Morgan wishes to appeal. The IT1 in this matter was lodged by Mr Morgan on 5 May 1998. It was one of those cases that had a three-month time bar in the sense that the IT1 could not complain of events more than three months before the lodging of the complaint. So it is the sort of case one would expect time and its passage to be very much in mind from the start.[2]In February and April 1999 there were four days spent hearing the case, from 24 February, the first date, to 6 April 1999, the last date. Then, on 8 April 1999, the Extended Reasons of the Employment Tribunal were sent to the parties and the IT1 was struck out for want of jurisdiction. It was unanimously struck out and the case was described as "without merit", from the outset.[3]On 17 May 1999, the Appellant, Mr Morgan, put that date on a Notice of Appeal. It is a typed Notice of Appeal of a number of pages of length, and it says:
"Any communication relating to this appeal may be sent to the appellant at: c/o Law-Direct."
Law-Direct is an undertaking of which a Mr Nicholson forms part or the whole. That was 17 May 1999.[4]On 20 May 1999 the 42 days allowed for a Notice of Appeal expired, the time running from the date on which the Extended Reasons were sent to the parties. It is notable that time runs from when the Extended Reasons are sent, rather than from when they are received.[5]On 14 June, there was an alleged conversation with someone at the EAT. On that day, as it later transpires from an affidavit by Mr Nicholson, Mr Nicholson, having learnt that Mr Morgan had had no acknowledgement of his Notice of Appeal and having himself had no notice of the Employment Tribunal's receipt of the Notice of Appeal, he telephoned the Tribunal on the morning of 14 June and spoke to a Tribunal Clerk. His later affidavit (which I shall come on to) says:
"… whose identity was never made known to me. He appeared to refer to tribunal records, and then advised me that there appeared to be [no] record of the Tribunal having received the Appellant's Notice of Appeal. I was further advised by the Tribunal clerk to fax all the papers to the Tribunal that day, which I did. (At no time have I sent hard copies of the Notice, to the Tribunal)."
That was 14 June and on that day, then, as that passage which I have just read indicates, the Notice of Appeal was sent by fax to the EAT, and hence was received, albeit late.[6]The usual course taken by the EAT when a Notice of Appeal is received late is that the observations of the other side are invited (and that was done here) and the outcome was that on 25 August an order was made by the Registrar and it said:
"AND UPON consideration of the aforesaid application and a letter from the Respondent dated the 6 th day of August 1999 and a further letter from the Appellant dated the 23 rd day of August 1999 IT IS ORDERED that the aforesaid application be refused."
That was an application to file the Notice of Appeal out of time. There is a correction later because the number of days out of time was, in the first instance, wrongly expressed. On 29 August Mr Morgan appealed against that refusal to extend time.[7]The matter first came before me on 5 November 1999 and I heard both sides. I had nothing in front of me, at that stage which explained just how it was that the 42 days had expired without a Notice of Appeal having been received by the EAT. It was already claimed on that last hearing by Mr Morgan that Mr Nicholson had, indeed, posted the Notice of Appeal on 17 May, before the expiry on the 20 th , but there was nothing from Mr Nicholson on the point and it seemed to me at the time that evidence was needed to show, if it was the case, that the Notice of Appeal had, indeed, been sent on 17 May. I said:
"THE TRIBUNAL ORDERS that an affidavit as to postage on the 17 th of May by whoever claimed to have posted the appeal, be filed with the EAT and served on the Respondents [at Swansea College] within 10 days from today."
That was 5 November 1999. I also made provision as to costs. I said:
"THE TRIBUNAL FURTHER ORDERS that the Respondents be awarded costs assessed summarily at £540 plus VAT on £350 which forms part of that sum and that the Applicant do pay not less than £270 on the 1 st day of December 1999 and the balance on the 1 st day of January 2000."
I directed that the matter should come back on the first available date after the 1 st day of December and that if the sum of £270 (the first instalment) had not then been paid the Appeal would be dismissed.[8]It seemed to me that such terms were fair given that Swansea College had been invited to the hearing which was as a result of some postal difficulties which certainly were not their fault and, moreover, the case had had to be adjourned because the evidence was inadequate at the time.[9]The outcome was that on 8 November, three days after that adjourned hearing, Mr Nicholson swore an affidavit and he set out the arrangements for the drafting of the Notice of Appeal. He is some sort of professional consultant in matters such as this. He does not hold himself out as being a Solicitor or Barrister but seems to hold himself out as some sort of legal adviser in this area. He describes how he consulted Mr Morgan and how, eventually, a draft Notice of Appeal was settled upon. He says the Notice of Appeal, which was ultimately submitted to this Tribunal, was completed over the weekend of Saturday and Sunday, 15 and 16 May 1999. He describes how he printed two copies off and personally collated both sets of documents, side-by-side, and enclosed them in two A4 manilla envelopes, sealed them on Sunday the 16 th , and placed 38 pence worth of postage stamps on each. He produced his wall calendar as some form of confirmation and then he says:
"That I confirm that on Monday 17 th May I personally took both envelopes to the post box attached to my village Post office, and posted each, in time to be collected in the first collection, ie approximately 10.30 am. That the Appellant telephoned me the following day, Tuesday 18 th May to confirm that his copy of the Notice had been received by him."
Then he goes on with the passage, which I read earlier, that he was later troubled to find that he had had nothing from the EAT to say they had a copy and hence made the communication which I earlier mentioned.[10]The £270 was paid in time by Mr Morgan and, indeed, the whole sum, I am told, has been paid and I have no reason to disbelieve the affidavit of Mr Nicholson as to posting on Monday 17 May. If he is telling the truth, and, as I say, I have no reason to think that he is not, then the Notice of Appeal should have been received in time by the EAT, but it was not. It is fair to say, as Mr Rees, on behalf of Swansea College says, that if one leaves matters to the 39 th day, one does inevitably run a risk. But here, it seems to me, the proven posting in time should have led to the timely receipt of the Notice of Appeal. It seems to me that such fault as there is is not such as it would be proportionate to exclude the appeal altogether because the fault would seem not to have been of a party or of an adviser but, if of anyone, either of the Post Office or, conceivably, of the EAT. Accordingly, I will allow the appeal. I will extend time for filing the Notice of Appeal to 15 June 1999, which is sufficient to validate the appeal.