DR R SAXENA v H M PRISON SERVICE [2001] UKEAT 1254_00_3001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1254_00_3001Case No Appeal No. PA/1254/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR R SAXENAAPPELLANTH M PRISON SERVICERESPONDENT
Before
Mr Justice LindsayDate 30 January 2001
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondents MS R HAYNES (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE LINDSAY (PRESIDENT) : I have before me an appeal by Dr R Saxena. He appeals against the decision of the Registrar by which the Registrar refused to extend time for his presentation of a Notice of Appeal. The respondents are Her Majesty's Prison Service and accordingly Ms Haynes appears before me on the instructions of the Treasury Solicitor. Dr Saxena, it seems, is in prison. I will set out the chronology and revert to the procedural position, because this is the second time the matter has come before me. On 13th August 1998 Dr Saxena presented a IT1 which, as it seems, was for racial discrimination and unfair dismissal. I say "as it seems" because it is far from clear what precisely Dr Saxena was claiming and unfortunately Box 1, headed "Please give the type of complaint you want the tribunal to decide (for example unfair dismissal, equal pay). A full list is given in Booklet 1. If you have more than one complaint list them all", was left entirely blank by Dr Saxena.[2]On 8th September 1998 the Prison Service lodged an IT3 and assumed, rightly in my view, that his claim was really for unfair dismissal and for racial discrimination. The Prison Service said in their paragraph 4:
"The Respondent avers that the Industrial Tribunal does not have jurisdiction to hear the Applicant's complaints, which the Respondent has assumed are Unfair Dismissal and Race Discrimination."
The IT3 continued by raising a number of points which might well be rather powerful; they said:
"6 The Applicant was employed as a Locum Medical Officer by a contract for services dated 2 September 1998, commenced on the 5 September 1994, and was signed by both parties. It was an express term of the contract that the agreement was terminable by giving two weeks notice on either side. The Respondent by a letter dated 4 October 1995 duly gave two weeks notice of the Applicant's termination as per the express terms of the contract. The Applicant's last effective day was the 18 October 1995."
They denied that the applicant was an employee of the respondent. It was contract for services rather than of service. They said:
"9 Additionally the Applicant's complaint is made out of time. The Applicant's date of service were the 5 September 1994 to the 18 October 1995. The Applicant's Originating Application is dated the 28 July 1998. As to the Applicant's allegations relating to the above it is denied that it would not have been reasonably practicable for the complaint to have been presented within the time limit of three months. 10 It is further denied that the Applicant had been continuously employed by the Respondent for the necessary qualifying period to enable him to bring his complaint of unfair dismissal. His employment commenced on the 5 September 1994 and terminated on the 18 October 1995."
So, obviously, there were going to be pretty substantial hurdles in the way of Dr Saxena's application.[3]On 9th December 1998 proceedings were stayed by reason of Dr Saxena's bankruptcy.[4]On 5th January 1999 the decision of the hearing of 9th December 1998 was sent to the parties.[5]On 11th July 2000 the Chairman ruled upon Rule 13(2). The Chairman, Mr D A Leahy, decided:
"The unanimous decision of the Tribunal is that these applications are dismissed as vexatious and for want of jurisdiction."
The point being, that we will come onto in more detail, that the claim vested in the Trustee in Bankruptcy and not in Dr Saxena and that the Trustee in Bankruptcy had not indicated that he took part the claim in or had assigned it to Dr Saxena.[6]On 30th July 2000 Dr Saxena, it seems, asked the EAT for the printed appeal form. On 1st August 2000 Dr Saxena was sent the forms and was told of the 42 day limit. On 8th August 2000, on the face of things, Dr Saxena wrote in that date on a completed Notice of Appeal form. On 22nd August 2000 the 42 day period from 11th July 2000 expired. On 27th September 2000 the Notice of Appeal was received by the EAT, 36 days late and, as is usual, the Employment Appeal Tribunal then enquired whether the would be appellant applied for an extension of time. On 6th October 2000 Dr Saxena claimed that he was puzzled as to the late receipt of the Notice of Appeal because, as far as he was concerned, he said he had completed it on or about 8th August 2000. He said:
"I would have sent you a reminder, but due to my ill health due to beating (Physical, mental and emotional torture) I could not do so. … I have diabetes which is not controlled in that period."
On 30th October 2000 he applied for an extension of time on two grounds. He said:
"Thanks for your letter dated 16/10/00 which is at hand today only. … The grounds are as follows:- (1) I was off sick as I could not read. I have to attend Watford General Hospital, eye department for laser treatment in that period. (2) I despatched the letter on 8.8.00. It was received by you on 27.9.00. I have written letter to post office. If my health would have been perfect between 8.8.00 to 27.9.00 I would have sent you a reminder. In these circumstances I shall be grateful for extension of time."
[7]On 6th November 2000 the Treasury Solicitor, having been approached to see if the Prison Service wished to oppose an extension of time, said:
"2. We all know that the Post Office is imperfect, but it strains belief that a letter he sent on 8 August should only reach you on 27 September, and that a letter you sent on 10 October should only reach him on 30 October. 3. The Applicant claims to have been unfit to deal with the matter but fails to produce a medical certificate; a procedure with which as a GP he must be entirely familiar. In the circumstances I invite the Registrar to dismiss the application to extend the time."
[8]On 9th November 2000 Dr Saxena added further reasons:
"(1) Problem with my (L) eye. Almost I had been made blind. I am in attendance of Moorfield eye hospital and Watford Gen. Hospital. Problem is of serious nature I have insulin dependent diabetes which is unstable. (2) Somebody is doing fraud and I am taking legal action. Letter was dispatched on 8.8.00 and you received it on 27 Sept 00. I replied your letter of 16 Oct 00 immediately which you have not received. Now this letter of 9/11/00 by first class mail you should received before 14 Nov 00. I shall be grateful if above reasons are acceptable. With best regards."
[9]On 20th November 2000, taking the communications as I have described into account, the Registrar made an Order and it said:
"AND UPON CONSIDERATION of paragraph 3(1) of the Practice Direction (Employment Appeal Tribunal – Procedure) where it is clearly the responsibility of the Appellant to ensure that a properly constituted notice of appeal is submitted to the Employment Appeal Tribunal within 42 days AND UPON CONSIDERATION of the fact that the envelope in which the notice of appeal was delivered carried a postmark of September 2000 clearly showing that it was posted outside the time limit AND UPON 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 or acceptable reason why the notice of appeal could not have been presented within the time limit laid down AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused"
[10]On 21st November 2000 there were what were then final submissions by Dr Saxena and the position now is, and it is not at all explained, that having begun, as it seems, as medical officer working in the Prison Service, he was now in prison as a prisoner. He says:
"Dear Sir I am in prison you can't post letter yourself. The screw officers are torturing me. They kept the letter and then posted after a long time. I have taken to them to judicial review. I could not get justice case in Civil Appeal office. My appeal is still to be heard. Release date 6.1.2001. I shall be grateful if consideration is given on this ground."
[11]The matter then came before me for the first time on 16th January 2001. Dr Saxena did not attend. Although, broadly speaking, the merits of a prospective appeal commonly play little or no part in an assessment of whether time should be extended, it cannot be said that they are wholly out of consideration and I did raise with Ms Haynes a question that concerned me about the vesting in the Trustee in Bankruptcy of any claim that Dr Saxena might have as including his claim for injury to feelings. It seemed to me, untutored by authority at the time, that there was a possibility that at least so far as concerned Dr Saxena's claim for racial discrimination and for injury to feelings on that account that it was the type of claim that would not ordinarily vest in a Trustee in Bankruptcy and, accordingly, that that might have been a point that could have been taken by Dr Saxena and which would have made the Chairman's decision of 11th July 2000 incorrect in law so far as it concerned vexation and want of jurisdiction. Ms Haynes, understandably, did not have the authorities with her on the day. It had not been foreshadowed as a point that was going to come up in any way and accordingly I stood the matter over until today.[12]A letter was written to Dr Saxena indicating that if he wished to take a point about the non-postage of his Notice of Appeal then it needed to be properly supported by evidence. The letter of 16th January 2001 from the Employment Appeal Tribunal to Dr Saxena in prison read as follows:
"I refer to above matter, which was listed for hearing today for an appeal against the Registrar's Order. This hearing has been adjourned until Tuesday 30th January 2001, in part because you neither attended nor were represented. If you wish any weight to be given to an assertion that you posted the Notice of Appeal to the Employment Appeal Tribunal on or about the 8th August 2000 you must adduce formal evidence (an affidavit) to such effect. It must be supplied to the EAT and the Treasury Solicitor not later than 4.30pm on 25th January 2001. Any other evidence on which you wish to rely must also be so supplied by that deadline. Equally, if you or someone on your behalf wishes to argue in anyway that the decision sent to the parties on 11th July 2000 (on the ground of want of Jurisdiction or vexation) was wrong in law or otherwise that the merits of your appeal should be taken into account, then a skeleton argument to such effect must be supplied to the EAT and the Treasury Solicitor by 4.30pm on 25th January 2001. If at the adjourned hearing, you neither appear or are represented, the EAT will have to proceed in your absence."
[13]On 18th January 2001 Dr Saxena sent what is called a "Witness Statement". It is headed:
"Witness Statement of Dr Saxena as permission is not given to make affidavit."
He claims in that that he is detained illegally and is being tortured. He says:
"Under rule 51 prison rules on 8th August 2000 I post the letter of notice of appeal and asked to send by recorded delivery as I do with other letters. I filled the proper form. It is clear they could not post this letter by recorded delivery as they will be caught."
[14]On 22nd January 2001 there was a skeleton argument from Dr Saxena. It said:
"(i) The [ applicant ] asked to send mail by recorded delivery. A disbursement form was completed. This is reflective in submission that [ the respondent Prison Service ] with purpose to delay my application kept it 36 days late. When it was out of time it was dispatched. … (iv) Notice of appeal was presented by [ applicant ] in right time. Why [ respondent ] has not sent it by recorded delivery when disbursement form was completed. …"
[15]On 23rd January 2001 the EAT wrote a letter saying this, inter alia; "Our letter of 16 January 2001 required " formal evidence (an affidavit)" and equivalent weight cannot be given to unsworn statements such as those you have supplied unless the headings "permission is not given to make affidavit" are substantiated either by a written note from whatever official refused the permission or by reference to printed prison rules or regulations showing that an affidavit could not be made in the circumstances."[16]On 26th January 2001 there was a further document from Dr Saxena calling itself an affidavit but it was unsworn and unaccompanied by any official explanation such as the letter from the EAT on 23rd January 2001 had required. It says:
"Under prison rule 51 on 8th August 2000 I posted the letter under recorded delivery in prison. I filled disbursement form and envelope was handed over to officer in Brister Wing Office. You can't close the envelope as they will read letter even if it is court letter and 37(A)/39 rule is written. It was held somewhere in prison and then posted after a month so it is out of time. They did not send recorded as requested. A request complaint was lodged, so far few more, but no reply received."
He says:
"I was not allowed for bankruptcy hearing EAT hearing on 16th January 2001. … Now no prison rule permits them not to send to EAT on 30.01.01. There is no law they can detain me after 04.01.01. But they are the law. This clearly shows they are racialist. Neither I can send 24 hours express delivery letter, fax. They refused for affidavit. Therefore please postpone hearing on 30.01.01 for at least 30 days. Statement of truth I believe that all the matters that appear in this witness statement are true."
That, I hope, is a sufficient summary of the paper and the chronology of the matter.[17]So far as concerns that application for an adjournment, I refuse it. There has already been one adjournment. There is no explanation why a period of at least 30 days should be sought and there is no explanation of what, if anything, would be different at the end of the 30 days. So I decline to adjourn this matter.[18]So far a concerns the concern which I raised on the last hearing and which goes to the merits of the appeal, Ms Haynes has satisfied me that where there is what can be called a "hybrid" claim by a bankrupt, that is to say partly as to property of a kind such as would pass to the Trustee in Bankruptcy if received and partly as to what one might call "personal" matters, putting the matter rather loosely, then the whole of that conjoined hybrid claim is vested in the Trustee in Bankruptcy unless and until he assigns it to the bankrupt so that the bankrupt could pursue it. If the Trustee in Bankruptcy pursues it then it can be that parts of the recovery, if any, appropriate to the personal side do pass directly to the bankrupt without falling into the bankruptcy, but it is the Trustee in Bankruptcy alone who has the hybrid claim vested in him – see Ord v Upton [2000] 2 WLR 755 CA at 761G-764A-C and 771. Dr Saxena's claim, although by no means clear from his somewhat rambling IT1, is, in my judgment, such a hybrid claim. In relation to unfair dismissal, in general, there would be a claim for past lost earnings and for future lost earnings and also, so far as concerns racial discrimination, that ordinarily permits a claim for injury to feelings. So, as it seems to me, it is a hybrid claim. Accordingly the claim is vested in the Trustee in Bankruptcy. He has not consented to its assignment to Dr Saxena; he has not said that Dr Saxena can pursue it on behalf of both of them.[19]Ms Haynes argues, in her supplementary skeleton argument for today, that:
"11 As matters stand, however, the Applicant has a non-personal claim under the Employment Rights Act and a hybrid claim under the Race Relations Act. Thus, both causes of action vested in the Trustee upon the Applicant's bankruptcy and the Applicant does not therefore have any right to bring these proceedings … 12 In view of the Trustee's unwillingness to proceed with the action, the Applicant's proper course would have been to ask the Trustee to assign the cause of action to him. If the trustee unreasonably refused so to do, the appropriate course for the Applicant would then have been to apply to the High Court under section 303(1) of the Insolvency Act 1986 for a direction that the Trustee assign the action. The Applicant has not done so even when the problem concerning his claim was raised by the Tribunal on or before 9 December 1998. The Applicant had ample time in which to carry out the necessary inquiries and take appropriate action but did not do anything to advance his claim for over 1½ years. He was in effect given a second opportunity to resolve the problem when the Tribunal, by letter of 16 June 2000, invited him to make comment on its proposed course of action, namely the dismissal of his claims. The Applicant did not take that opportunity. 13 Rather, the Applicant appears to be arguing ex post facto in his Notice of Appeal that the actions did not vest in the Trustee. That is plainly incorrect for the above reasons."
I believe that that argument is correct. Thus there would seem to be no claim which Dr Saxena is in a position to pursue under his IT1. Therefore, any appeal against the decision of 11th July 2000 would seem to be doomed to fail on the bankruptcy ground, even leaving aside the other difficulties which I mention at the outset. As Sir Christopher Staughton observed in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 at paragraph 23:
"… There can be no point in giving an extension of time for an appeal which is bound to fail. …"
That Dr Saxena gave the appropriate appeal form duly completed in good time before 22nd August 2000 to some person in the prison for posting to the EAT, whilst never clearly said, is not implausible and also it is not implausible that either innocently or maliciously its posting was thereafter delayed in prison. But the EAT letter of 16th January 2001 made it clear that formal evidence - an affidavit - would be required and that has not been done nor is there is official conformation that the opportunity to swear an affidavit has been denied to Dr Saxena, nor is there any reference to prison rules of a kind which were invited to be laid before the Employment Appeal Tribunal if they were intended to be relied upon. There is no confirmation even that the swearing of an affidavit has actually been attempted. There is no formal evidence of that. But even if I was willing to accept that the reason for the delay, namely that the form was completed in good time but was somehow delayed with the Prison Service through no fault of Dr Saxena - even if I was prepared to accept that as being plausible - then I would still be left with the difficulty that here there is an appeal which, as far as can be seen, would be doomed to fail. I think I am entitled to rely on the maxim of Sir Christopher Staughton and to say that there would be no point in giving an extension of time to a claim that was bound to fail. Having that in mind, I dismiss the appeal. There is no extension of time.