MS E EGBUNA v IMPERIAL COLLEGE OF SCIENCE TECHNOLOGY & MEDICINE [2001] UKEAT 1308_00_2602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1308_00_2602Case No Appeal No. PA/1308/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS E EGBUNAAPPELLANTIMPERIAL COLLEGE OF SCIENCE TECHNOLOGY & MEDICINERESPONDENT
Before
Mr Justice LindsayDate 26 February 2001
[1]APPEARANCES For the Appellant Mr Olu Ojedokun LLB(Hons) MA BL 9 Dunsmore Close Beeston Nottingham NG9 1LU For the Respondent MS CAROL DAVIS (of Counsel) Instructed by: Messrs Mills & Reeve Solicitors Francis House 112 Hills Road Cambridge CB2 1PH MR JUSTICE LINDSAY (PRESIDENT) This is the appeal of Ms E Egbuna in the matter Egbuna v Imperial College of Science, Technology & Medicine . Ms Egbuna appeals against the Registrar's refusal to extend time for the presentation of her Notice of Appeal.[2]So far as concerns representation before me today, Mr Olu Ojedokun has appeared for Ms Egbuna as her representative but, I add, a representative with legal qualifications; he has an LLB (Hons), an MA and BL. Imperial College appears by Ms Carol Davis.[3]The chronology is as follows: on 13 January 2000 an IT1 was presented by Ms Egbuna for unfair dismissal. She claimed that the employer had terminated her employment on 14 October 1999 by reason of her "immigration status". In effect the complaint being made was that Imperial College had brought about a Home Office failure to give indefinite leave to her to remain in the United Kingdom by failing to respond to a Department of Employment request, and so the complaint was that, in effect, the college was relying on its own default in order to get rid of her as an employee.[4]On 22 February 2000 Imperial College put in a long IT3. They claimed that Ms Egbuna had been dismissed because she had not got a work permit. They said the Respondent's decision to dismiss the Applicant was as a result of clear evidence being produced that the Applicant had been working for the Respondent since 12 February 1996 in breach of section 24 of the Immigration Act 1971 and that any continued employment of the Applicant by the Respondent would be in continued breach of section 24 of the Immigration Act 1971.[5]The college denied that it had failed to make appropriate enquiries or had delayed in any way, and they said that it had been made plain to them by the Overseas Labour Service that what is called a "TWES" permit would not be granted in Ms Egbuna's case.[6]That matter went forward to a full hearing at London Central on 17 April 2000. Ms Egbuna was in person and the college too, was not professionally represented. On 3 May 2000 Summary Reasons were sent to the parties; presumably someone asked for Extended Reasons and on 8 August Extended Reasons were sent to the parties. The decision which, of course, was clear from the Summary Reasons was re-set out in the Extended Reasons and the Tribunal, which was under the Chairmanship of Mr G Sigsworth, unanimously decided that the Originating Application was dismissed. In their last paragraph they said:
"10 It appears that the Applicant's continued employment by the Respondent was in breach of Section 24 of the Immigration Act 1971. Perhaps more important is the fact that her employment with the Respondent was obtained and continued in breach of the requirements of the Immigration Rules 1971. The Tribunal has concluded that her employment with the Respondent was therefore illegal from the start, and her contract of employment was therefore void from the outset. She therefore cannot rely on her contract of employment before this Tribunal, and the Tribunal declines to enforce it. In the circumstances, therefore, her application is dismissed."
That decision was sent to the parties on either 8 or 9 August; the lettering is handwritten and not entirely clear.[7]On 15 September (although this was not known at the time to the Respondent College or to the EAT) Ms Egbuna was advised by Counsel that she had no chance of success on appeal; that advice was in writing. On either 19 or 20 September the forty-two days for the lodging of the Notice of Appeal at the EAT expired, and, of course, why I say 19 or 20 September is that there is some doubt about whether the decision was sent out to the parties on 8 or 9 August, as I have mentioned.[8]The date the 20 th September is the date from Mr Ojedokun on behalf of Ms Egbuna. It is stamped as received by the EAT as late as 10 October. The letter says that it was intended to lodge a Notice of Appeal and the letter, over two pages long, asks for an extension of time for fourteen days in order that that should be done. The letter is not, itself, a Notice of Appeal; it chiefly directs itself to presenting arguments for an extension of time. Ms Davis makes the point that if a letter as long as that letter could have been composed, then why on earth not compose instead a Notice of Appeal?[9]On 25 September, responding to a letter from Ms Egbuna, or on her behalf, presumably written by Mr Ojedokun, the Employment Appeal Tribunal sent out forms. This does suggest that there was some letter received by the EAT by 25 September, which does suggest that the stamp on the letter of 20 September indicating it was received only on 10 October, although, perhaps, true as to that copy, was not necessarily the whole truth.[10]On 10 October a Notice of Appeal bearing the date 9 October was received by the Employment Appeal Tribunal; as Ms Davis points out, it would have taken some twenty days in preparation if begun on 20 September. It says:
"6 The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal):- Attached. Also attached is basis on which extension is requested."
[11]On 11 October, as is its custom in these matters, the Employment Appeal Tribunal sought the views of the relevant Respondent, here the College, to see what attitude they took towards the grant of an extension of time. On 23 October the college wrote in, indicating it opposed any extension. On 1 November Ms Egbuna put in her final comments and the matter went forward to the Registrar, who made an Order on 7 November. The end part of that Order says:
"IT IS CONSIDERED 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."
And that was recited as having been after further consideration of the judgment given in United Arab Emirates v Abdelghafar .[12]On 10 November it was indicated that Ms Egbuna wished to appeal against the Registrar's decision. Mr Ojedokun advances arguments on behalf of Ms Egbuna. Ms Egbuna had instructed solicitors, he said, the particular solicitor being Anna Barlow. Anna Barlow had advised her that the deadline for an appeal was 19 September; Anna Barlow had instructed Counsel in relation to the appeal; she told Counsel that the deadline was 19 September. It does not appear when Counsel was instructed; it is said that fact appears in a letter to Ms Egbuna from Anna Barlow of 17 August, but that letter is not produced.[13]On 15 September Counsel advised that Ms Egbuna had no prospect of success on appeal. 15 September was a Friday. Ms Egbuna, it is said, made many calls to Ms Barlow and each time was assured that the matter was in hand and that Ms Barlow was well aware of the deadline. Only on 18 September, it is said, Ms Egbuna was told by the solicitors she had instructed that they would not proceed with an appeal. The solicitor's explanation for the delay was the delay in getting Counsel's advice. Ms Egbuna then immediately instructed Mr Ojedokun, a representative, on the evening of 18 September and he wrote on 20 September to ask for an extension of time in the manner that we have mentioned.[14]It is difficult not to have some doubts about this explanation. There is nothing at all from Anna Barlow. There is nothing at all from Counsel, except his written opinion. The letter of 17 August is not produced. In that letter (it is said in Mr Ojedokun's argument) Ms Barlow advised Ms Egbuna that her papers had been forwarded to Adam Soloman, the barrister, to obtain his advice on the appeal, but we have not got that letter.[15]Mr Ojedokun has submitted that the itemised phone bill produced shows that Ms Egbuna had been calling Anna Barlow nine times to warn of the approaching deadline. But the telephone bills produced show only one call, that is say of 14 September, in the whole period; only one call to Ms Barlow's number in the whole period from 8 August, when the decision was sent out, (possibly 9 August) when it was sent out and 19 or 20 August when the deadline expired.[16]It is also said in Mr Ojedokun's Skeleton that he was instructed on the night of 18 September 2000 at 9.46 pm and he adds "please see copy of fax dated 18 September 2000 and attached". But there is no fax of 18 September, beyond a copy of Counsel's opinion and it is plain from the fax that there had been pages 1 and 2 and they have not been produced.[17]It is tempting to adjourn the application in order to give Ms Egbuna the opportunity to prove her explanation which, as things stand, is weakened by doubt as to its completeness and candour. It has also to be borne in mind that there is in fact, no evidence properly-so-called; there is no sworn affidavit or statement, just allegations by way of assertion and correspondence and so on.[18]However, whilst I bear in mind the possibility of adjourning the matter, I will proceed on the assumption that no questions at all arise as to the candour of the explanations given in the matter; even so, a feature does stand out; the only reason for delay in lodging a Notice of Appeal after say, 9 August, when the Extended Reasons would have been received, appears to be the awaiting of advice as to whether the appeal could be successful. That is said to occupy the time, in effect, to the 18 September, and then, in effect, it is said that it was too late.[19]There is no hint anywhere that Ms Egbuna ever gave instructions that a Notice of Appeal was to be lodged regardless of whether or not it had any prospect of success. It was truly not the awaiting of advice as to the prospects of success that delayed matters, but the failure by Ms Egbuna to give instructions that the matter should be proceeded with, regardless. If, for example, on 14 September, when there was a telephone call between her and Ms Barlow, she had said "Don't wait for Counsel's advice, go ahead regardless. Prepare and lodge a simple Notice of Appeal" it is hard to see why it could not have been done in time.[20]It is well settled that awaiting legal aid provides no excuse for failure to lodge a Notice of Appeal and it is impossible to see why, correspondingly, awaiting advice as to the prospects of success should provide sufficient excuse. At any point, Ms Egbuna could have said to her solicitors "Present a Notice of Appeal, regardless of Counsel's advice - I will want to go ahead whatever he says, and I dare not wait any further". There is no reason to think that if she had done that the Notice of Appeal would have been out of time. To that extent it is her fault that it was late. There is nothing in the papers to suggest that she could not have instructed solicitors or her representative Mr Ojedokun to go ahead regardless. She could, of course, have disinstructed the solicitors and have instructed Mr Ojedokun or another firm of solicitors in their place, as Ms Davis points out, and that could have been done at any time at which it appeared that the solicitors were delaying or were loth to proceed without first obtaining advice on the merits.[21]That being so, it is difficult to find fault in the Registrar's Order. Even assuming the complete candour of the explanation given, it amounts to no reason, as it seems to me, to grant the exceptional and indulgent course of extending time in a case involving, crucially, an appeal after a merits hearing. The Courts are habitually less inclined to indulge an Applicant who has had the first bite - the merits hearing - and, finding it not to her taste, seeks to have a second.[22]I find nothing in the familiar case of Abdelghafar to deter me from this course, nor indeed, in Aziz v Bethnal Green CA , where, broadly speaking, the relatively strict approach taken by the EAT in the Abdelghafar case was approved, or not disapproved, by the Court of Appeal. Mr Ojedokun urges that the justice of the case requires an appeal because Ms Egbuna had not been represented professionally below, but, whilst it does appear that she was not, nor was the other side and in any event Tribunals habitually make allowance for unrepresented parties who so commonly appear in front of them.[23]There is, in any event, no explanation of why she was not professionally represented below, given that she was apparently able to instruct solicitors and Counsel in relation to an appeal. I do not think it is possible to attach any weight to that point. Mr Ojedokun includes a citation from Costellow and prays it in aid, but Costellow was dealing with cases where there had not already been one hearing on the merits.[24]This case, being one concerning an appeal, does not fall to be decided mainly by a balancing of relative prejudice to the Applicant and to the Respondent, but even if it did, I have no assurance that the College, having to lay out further costs in an appeal, would be able, even if awarded them, to recover them from someone of whom it has been held by the Employment Tribunal that she had not established that she has any right to work here beyond 31 August, and where her own Counsel advised her that that finding was correct: 31 August 1995, I think it was.[25]If I enquire into whether I detect any error of law or of principle or in relation to matters taken into account or not taken into account in the Registrar's exercise of her discretion, I find none. If, alternatively, I look at matters wholly afresh, I find that the delay was ascribable to Ms Egbuna's not having instructed her solicitors to lodge an appeal without awaiting Counsel's opinion. As I have already mentioned, awaiting legal aid which is very commonly associated with a need to produce Counsel's opinion as to the prospects of success, is no good reason for delay in the lodging of an appeal: see Abdelghafar at page 71 E - F, and it is impossible to distinguish Ms Egbuna's reasons for delay in any way that is favourable to her. It will be remembered too, that there was no application ahead of the expiry for an extension of time - see Abdelghafar page 71 F - G.[26]Looking at the matters afresh, I see no sufficient reason to grant the exceptional relief of an extension of time. I do not, on reflection, adjourn the case for evidence properly-so-called, for a further and better explanation on any of the possible doubts that I have touched upon because that would only serve to raise false hopes in Ms Egbuna and cause expense and delay to both sides. The hopes would be false because, even assuming total candour in her explanation, as I have said, Ms Egbuna's case fails for the reasons I have given. Accordingly I dismiss the appeal.