BALDAN LTD v MR V G FERNANDES [2000] UKEAT 760_00_1412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 760_00_1412Case No Appeal No. PA/760/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BALDAN LTDAPPELLANTMR V G FERNANDESRESPONDENT
Before
Mr Justice LindsayDate 14 December 2000
[1]APPEARANCES For the Appellants MR A SALFITI (Solicitor) Messrs Salfiti & Co Solicitors 62 Camden Road Camden Town London NW1 9DR For the Respondent THE RESPONDENT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : Baldan Limited appeals against the Registrar's Order refusing an extension of time for a Notice of Appeal that was received at the Employment Appeal Tribunal 29 days late. Today Baldan Limited, the appellant, appears by Mr Salfiti, the solicitor who had acted in this matter on behalf of that company. The respondent, Mr Fernandes, is here in person. On 13th January 2000 Mr Fernandes lodged an IT1 for wrongful dismissal against Baldan claiming breach of contract terms and conditions.[2]On 10th February 2000 Baldan issued an IT3 answering that IT1 and they asserted that he had in fact been merely on probation and was not entitled to the three months' notice which he was claiming.[3]The matter came before the Employment Tribunal at London (North) on 20th March 2000 under the chairmanship of Mr C A Carstairs. Baldan was represented, then too, by Mr Salfiti, its solicitor.[4]On 4th April 2000 the decision was sent to the parties. It was a unanimous decision. It was:
"The unanimous decision of the Tribunal is that the Respondent in breach of the Applicant's contract dismissed him without giving him three months' notice. Accordingly the Tribunal ordered the Respondent to pay to the Applicant the sum of £3,600 less deductions for tax and national insurance."
That, as I say, was sent to the parties on 4th April 2000.[5]It is the sending of the decision to the parties that sets time running for a Notice of Appeal. The time is 42 days.[6]On 15th May 2000 (with the 42 days was set to expire on 16th May 2000) Salfiti & Co wrote to the Employment Tribunal saying that it was their intention to appeal and asking for leave to appeal. They say:
"We write with reference to the decision of the Tribunal sent to us on 4th April 2000, whereby it was ordered that the Respondent do pay the sum of £3600 to the Applicant after the appropriate deductions have been made. Our intention is to appeal the above decision on the following grounds: -"
The grounds are then sent out. At the end of the letter it says:
"In this case we submit that the Tribunal's decision was not decided correctly and hereby apply for leave to appeal."
That letter was sent to the Employment Tribunal's London (North) office in Woburn Place.[7]It is not one of those cases where the letter shows that it was intended to be sent to the Employment Appeal Tribunal and then somehow got into the wrong envelope or something along those lines; the letter itself is addressed to the Employment Tribunal at London (North) and one can only assume that the envelope was addressed in the same way. That was on 15th May 2000, as I have indicated.[8]On 16th May 2000 the 42 days expired.[9]On 14th June 2000 the Employment Appeal Tribunal received a Notice of Appeal. The date written in on it is the 14th June; it is a hand-written notice giving the appellant's name as Baldan Ltd, giving the representative for Baldan as Salfiti & Co Solicitors and attaching a copy of the letter of 15th May, which I have already cited from, as being, in effect, the grounds of appeal.[10]On 19th June 2000 the Employment Appeal Tribunal pointed out that it was 29 days late and invited Salfiti & Co to say whether an extension of time was sought.[11]On 23rd June 2000 Salfiti & Co wrote back saying: "The reasons for the delay in serving the Notice of Appeal are as follows:- 1. A notice of appeal was sent on the 15th May 2000 by fax and post to the Employment Tribunal (London North), instead of The Employment Appeal Tribunal (see copy of letter with fax transmission report enclosed); 2. On the 14th June 2000 the mistake was discovered as a result of our follow up and as we have not heard from the Appeal Tribunal. On the same day we sent the same notice of the Employment Appeal Tribunal, together with clarifications of the delay (copy of letter enclosed). Nonetheless as soon as the mistake was discovered we forwarded Notice of Appeal again to the Employment Appeal Tribunal." and it asked for an extension of time.[12]On 25th June 2000 Mr Fernandes indicated that he opposed any extension of time, having been invited by the Employment Appeal Tribunal to state whether he wished to oppose it and what his grounds for opposition would be. On 12th July 2000 he followed that up with a letter which is somewhat intemperate on the subject; I do not need to pay attention to that.[13]On 14th July 2000 the Employment Tribunal wrote to Mr Fernandes saying that it did not receive a Notice of Appeal from the appellant. It says:
"We are not in a position to comment on action taken by a solicitor or Employment Appeal Tribunal. However, we can confirm that we do not appear to have received a Notice of Appeal from the Respondent, according to our post records and the fax machine activity report of 15 May 2000."
But there has since been some evidence adduced referring to BT records which suggest that that may very well not be the case and that it should have received a fax on 15th May 2000.[14]On 19th July 2000 the Employment Appeal Tribunal asked Salfiti & Co, acting for Baldan, to put in their final submissions.[15]On 26th July 2000 Mr Waseem Odeh, who is described as a paralegal at Salfiti & Co, provided an unsworn witness statement. Mr Fernandes has criticised the fact that it was not sworn, but I do not take it to be of significantly less weight on that account. I bear in mind, as Mr Salfiti says, that it would be dreadful behaviour on the part of someone in a solicitors firm to lie in a witness statement, almost as offensive as it would be to lie on oath. So I am perfectly happy to rely on an unsworn witness statement from Mr Odeh. He says:
"On 15th May 2000, the final draft of our letter of appeal with the grounds was ready to go out to the tribunal, and to ensure that it arrives on the same day I sent the letter by fax as well as by post."
The letter he is talking of there is the letter of 15th May but that letter is not a Notice of Appeal. It says that there is an intention to appeal and it asks for leave to appeal and it was sent to the Employment Tribunal and not to the EAT. He says:
"As I have not heard from the Employment Appeal tribunal and further, I contacted them on 14th June 2000 and raised the matter up, to discover that I sent the letter by mistake to the Employment tribunal instead instead of the Appeal tribunal. …"
But the letter was not sent by mistake to the Employment Tribunal in the sense of it going off to someone other than the addressee, as I have mentioned. The addressee was the Employment Tribunal and it was sent to the Employment Tribunal. Mr Odeh continues:
"I completed the form and sent the same together with a covering letter and the original letter, by post and fax to the Appeal Tribunal address."
He exhibits a typed letter with a typed date of 14th May 2000, manually corrected to 14th June 2000. That letter sent then to the Employment Appeal Tribunal says:
"We further would like to clarify the following:- 1. A notice of appeal was sent on the 15th May 2000 by fax and post to the Employment Tribunal (London North), instead of the Employment Appeal Tribunal. 2. The Mistake was later discovered as we have not heard from the Appeal Tribunal any further. 3. We therefore contacted the Employment Tribunal to check whether our notice of appeal was forwarded to the Employment appeal Tribunal, to find out that they even had not received it. 4. The notice of appeal was sent by post as well as by fax (copy of fax transmission attached). We are aware of the time limit for serving the notice, and we have complied with it by serving the notice on the 15th May 2000. Kindly consider the above and grant leave to appeal."
Going back to Mr Odeh's witness statement he completes it by saying:
"I completely deny the Respondent's allegation or any kind of misconduct or intention to mislead the tribunal."
[16]On 28th July 2000 there was made the Registrar's Order which said, amongst other things:
"AND UPON FURTHER 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"
[17]On 2nd August 2000 Salfiti & Co, as Baldan's solicitors, indicated that they intended to appeal against the Registrar's Order.[18]On 24th October 2000 Mr Fernandes wrote to the Employment Appeal Tribunal.[19]On 27th November 2000 there was second witness statement from Mr Odeh that day, which, amongst other things said:
"I do not deny the fact that appeal was submitted by mistake to the Employment Tribunal, however I reiterate the fact that it was submitted within 42 days time limit, and to ensure it is actually received, I sent it by fax and by post. On 14th June 2000, the day I discovered my mistake, I telephoned the Employment Tribunal to check whether they have forwarded the appeal to the Employment Appeal Tribunal. I was told that they always do if they receive any appeal papers by mistake, but I was astonished when told that they had not received the appeal although I informed them that I have fax transmission report to prove that."
So that he is there swearing that a fax was indeed sent to the Employment Tribunal on 15th May 2000, but it remains the case that it was not a Notice of Appeal and that it was to the Employment Tribunal and not to the Employment Appeal Tribunal. On 30th November 2000 Mr Fernandes submitted his skeleton argument.[20]That, I think, brings the picture up to date chronologically as to the background to the case. As I have said, I have heard Mr Salfiti and Mr Fernandes this morning.[21]The principles and guidelines applicable to cases such as these are familiar and they are set out in that Abdelghafar case, which is cited in the Registrar's Order and also in a more recent case Aziz v Bethnal Green in the Court of Appeal.[22]I have to ask myself whether there has been a full and candid explanation of the reasons for the delay and, if there has been, whether such an explanation discloses some exceptional circumstance that justifies the unusual relief of an extension of time for the lodging of the appeal.[23]The Aziz case shows that in the Court of Appeal the relatively strict line taken by the Employment Appeal Tribunal in relation to cases out of time was attacked. It was attacked as being stricter than was the Court of Appeal's own practice in relation to its own appeals, but the strict line taken by the Employment Appeal Tribunal was not disapproved in Aziz in the Court of Appeal and so the relatively strict line emerges intact.[24]Well, here we have a position in which, so far as one can tell, a firm of solicitors acted for the would-be appellant. The task of preparing a Notice of Appeal was put into the hands of paralegal. Although he says he is a paralegal "under the supervision of Amjad Salfiti Solicitor", there is nothing to suggest that once the task was actually delegated to him he received any further supervision or reminders. In his paragraph 2 he says:
"On 5th April 2000, I was delegated to study the tribunal's decision, and to prepare grounds of appeal thereafter. The first thing which was on my mind is the time limit which I must comply with, so I telephoned the Employment tribunal to confirm that the time limit is 42 days from the date of the decision, and further whether there is a special form of appeal, but there was not any."
So there is no indication there that, once the task was given to him, he received any further guidance or reminders. He speaks of a final draft emerging but no earlier draft is seen, nothing other than the so-called final draft of 15th May 2000. Time was due to expire on 16th May 2000.[25]He who leaves things to the very last runs a risk that if he does not get them right he will not have opportunity for correction. The so-called letter of appeal cannot, it seems to me, have been regarded by anyone of any appropriate experience in a firm of solicitors as a Notice of Appeal. It speaks only of an intention to appeal. It asks for leave to appeal. It is specifically addressed to the Employment Tribunal and it is sent to the Employment Tribunal. I do not wish to be hard on Mr Odeh but it is difficult to resist the view that if he truly thought that that letter of 15th May could be regarded as a Notice of Appeal to the Employment Appeal Tribunal, that indicates only that he was not a person to whom the task of preparing the Notice of Appeal should have been delegated.[26]Employment Tribunal decisions are accompanied when they are sent out by printed notes explaining to whom the appeal should be made, the Employment Appeal Tribunal, stating the current address of the Employment Appeal Tribunal, and stating the 42 day time limit. Those notes are carefully framed so as to be comprehensible even to a litigant in person.[27]In all these circumstances I cannot regard professional incompetence on the part of the solicitors as affording a good ground for an extension of time, whether the incompetence is in the delegate to whom the work was given or in the delegator in giving the work to someone of insufficient experience.[28]I add, for completeness, that there are observations of Popplewell J, when President of the Employment Appeal Tribunal, in Duke v Prospect Training Services Ltd [1989] IRLR 196 at paragraph 10, that emphasise the importance of a Notice of Appeal being sent to the Employment Appeal Tribunal as opposed to a letter of intent to appeal being sent to the Employment Tribunal. See also Martin v British Railways Board [1989] ICR 24 .[29]I cannot regard the explanation provided as showing an exceptional circumstance in which the relatively indulgent step of an extension of time can be granted. Accordingly, I must decline to extend time and therefore dismiss the appeal.