MR P C STUBBINGS v THE MINISTRY OF DEFENCE TRANSCRIPT OF PROCEEDINGS JUDGMENT APPEAL FROM THE ORDER OF THE REGISTRAR GRANTING AN EXTENSION OF TIME IN WHICH TO FILE THE ’S ANSWER [2001] UKEAT 1420_99_2302

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1420_99_2302Case No Appeal No. EAT/1420/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P C STUBBINGSAPPELLANTTHE MINISTRY OF DEFENCE TRANSCRIPT OF PROCEEDINGS JUDGMENT APPEAL FROM THE ORDER OF THE REGISTRAR GRANTING AN EXTENSION OF TIME IN WHICH TO FILE THE ’S ANSWERRESPONDENT
Before
Mr Justice LindsayDate 23 February 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR ANDREW EATON HART (of Counsel) The Treasury Solicitor Room 544 Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Mr Stubbings in the matter Stubbing v The Ministry of Defence . The Registrar has granted an extension of time to the Ministry of Defence, thereby validating the respondent's otherwise late Answer to Mr Stubbings' Notice of Appeal. Mr Stubbings appeals against the Registrar's grant of that extension to the Ministry of Defence. Before me today Mr Stubbings has appeared in person and the Ministry of Defence by Mr Eaton Hart. The matter begins with Mr Stubbings presenting an IT1 for sex discrimination and in respect of health and safety requirements as long ago as 19th May 1998.[2]On 9th October 1998 the Employment Tribunal ruled that Mr Stubbings' complaint should not be ruled out. So a hearing went forward and on 8th October 1999 the Employment Tribunal dismissed Mr Stubbings' application and he was ordered to pay costs of £100.[3]On 16th November 1999 Mr Stubbings appealed to the Employment Appeal Tribunal on wide-ranging grounds. On 25th February 2000, at the first hearing of preliminary hearing, the matter was adjourned in order to make some enquiries as to precisely what had been adopted by way of the procedure at the Employment Tribunal.[4]On 7th June 2000, at the restored preliminary hearing, the Employment Appeal Tribunal ordered Mr Stubbings' Notice of Appeal to proceed to a full hearing but only as to the propriety of the procedure adopted at the Employment Tribunal. The question really was this: had Mr Stubbings been deprived of an opportunity to challenge the evidence in relation to some documentation that was laid before the Employment Tribunal?[5]On 4th July 2000 the Employment Appeal Tribunal served a copy of the order of 7th June 2000 on the Treasury Solicitor acting, of course, for the Ministry of Defence. The letter accompanying the order appointed the 18th of July 2000 as the date by which any answer to Mr Stubbings' Notice of Appeal should be received by the Employment Appeal Tribunal. The Employment Appeal Tribunal Rules themselves do not prescribe any fixed period for an answer but here the Employment Appeal Tribunal, in effect, gave 14 days from its sending out of the letter and of the order. It was a tight timetable, relatively speaking, compared with the 42 days given for Mr Stubbings' and all other Notices of Appeal.[6]By 25th July 2000 the Employment Appeal Tribunal had not heard from the Ministry of Defence and so the tribunal wrote a letter to the Ministry of Defence that said, inter alia:
"… we have received no response. Your Answer to the Appeal should have been lodged with this tribunal by no later than the 18 July 2000 but has not yet been received. Please lodge your Answer to the Appeal by the 8 August 2000, together with an application for an extension of time in which to do so."
[7]On 27th July 2000 the EAT received a fax from the Treasury Solicitor, albeit one that in the letter part of the fax, was dated or purported to be dated 18th July 2000. A Respondent's Answer was enclosed and an explanation of the delay was given. It was written by Susan Lightman and it said:
"I act for the Respondent in this matter and I write further to your letter of 25 July. My colleague who had conduct of this matter has been absent on longterm sick leave since mid June. I was looking after this matter for him in his absence, but as I do not work on Fridays, and was out of the office on 17 July, I left the matter with a colleague to ensure that the final loose ends were tied up ready to fax the Answer to you on 18 July. I think that we both assumed that the other had faxed the documents to you. I attach the Respondent's Answer, and would request the Tribunal to allow my client an extension of time sufficient to validate it. I apologise to the Tribunal and to the Appellant for my oversight and any consequent inconvenience caused."
So a request for an extension of time for the lodging of the Respondent's Answer was made.[8]On 31st July 2000, as it habitually does in these cases, the Appeal Tribunal asked Mr Stubbings, the appellant, for his submissions on whether or not there should be an extension of time.[9]On 11th August 2000 Mr Stubbings gave reasons for his opposition to there being any extension of time.[10]On 4th September 2000 the Registrar by order granted an extension of time validating the Respondent's Answer, which had been received on 27th July 2000. The order said, in part:
"IT IS ORDERED that the aforesaid application do be granted and that the time for filing the Answer do be extended until the 27th day of July 2000 IT IS FURTHER ORDERED that any objections to this Order must be taken as a preliminary point at the full hearing a date for which has yet to be fixed"
[11]On 5th September 2000 that Registrar's order was sent to Mr Stubbings. Under Rule 21(2) time for Mr Stubbings to appeal from the order of 4th September 2000 expired on 9th September 2000, namely:
"Within five days of the decision appealed from"
[12]On 21st September 2000 Mr Stubbings indicated he wished to appeal and he gave reasons for his delay in the meantime. He had suffered at a medical level which we do not need to go into.[13]On 9th November 2000 the Employment Appeal Tribunal appointed today, 23rd February 2001, as the day for the hearing both of the full hearing of the substantive appeal by Mr Stubbings and Mr Stubbings' appeal against the Registrar's order of 4th September 2000.[14]On 15th November 2000 Mr Stubbings objected to the both of them coming on together. On 23rd November 2000 the Registrar directed that only the appeal against the Registrar's order of 4th September 2000 should come on for hearing today, which has been the case.[15]On 7th February 2001 Mr Stubbings lodged a skeleton argument in respect of today's hearing. On 20th February 2001 the Ministry of Defence did the same.[16]Looking at the skeletons and the correspondence, Mr Stubbings, in effect, makes three points. The first of them, which I think, perhaps, he does not now maintain (but since it is advanced in the skeleton perhaps I ought to deal with) is that the extension granted by the Registrar on 4th September 2000 was in excess of the authority delegated to her and is therefore unlawful.[17]For that we need to look at some passages in the Butterworths Handbook. Rule 20 of the Employment Appeal Tribunal Rules 1993 says:
"(1) Every interlocutory application made to the Appeal Tribunal shall be considered in the first place by the Registrar who will have regard to the just and economical disposal of the application, to the expense which may be incurred by the parties in attending an oral hearing and, where applicable, to rule 23(5). (2) Every interlocutory application other than an application for a restricted reporting order shall be disposed by the Registrar except that any matter which he thinks should properly be decided by the President or a judge shall be referred by him to the President or a judge, who may dispose of it himself or refer it in whole or in part to the Appeal Tribunal as required to be constituted by paragraph 16(1) and (2) of the Schedule 11 or refer it back to the Registrar with such directions as he thinks fit."
So an application for an extension of time is not referred to in terms there, but then further on in Rule 37 one finds:
"Time (1) The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged and the date appointed for any purpose may be altered, by order of the Tribunal. … (3) An application for an extension of the time prescribed for the doing of an act, including institution of an appeal under rule 3, shall be heard and determined as an interlocutory application under rule 20."
So the position there is that an application for an extension of time is to be dealt with as if an interlocutory application under Rule 20, and Rule 20 gives the determination of such matters to the Registrar unless she refers it to a judge. Well, she did not refer it to a judge, nor, indeed, was there any reason why she should have done. There was no acting in excess of authority. So this first point fails and, as I mentioned, Mr Stubbings really did not pursue it in oral argument at all.[18]Mr Stubbings next says that there needs to be finality in litigation. One can only say "of course". Here there cannot be finality until Mr Stubbings' appeal is heard by way of a full hearing. Had it not been for Mr Stubbings seeking to set aside the order of the Registrar, that full hearing, listed for today, could have taken place today. Mr Stubbings is entitled to desire finality, but this present appeal of his has, if anything, delayed finality.[19]Thirdly, Mr Stubbings refers to the guidelines in United Arab Emirates v Abdelghafar [1995] ICR 65 . But Abdelghafar was dealing with whether there could, in the circumstances there described, be allowed to proceed an appeal the Notice of Appeal in respect of which was outside the 42 day limit. It dealt with this question: given that the Rules prescribed a generous 42 days for the lodging of a Notice of Appeal, in what circumstances could that generous period be extended still further to allow a further proceeding by way of an appeal?[20]We are dealing with quite a different situation. In the circumstances before me there will undoubtedly be a further proceeding. Mr Stubbings' appeal has been directed to go to a full hearing on the one limited point I have described. The question here is quite different to that in Abdelghafar : it is whether that appeal is to be one in which the respondent can be heard and in which the Employment Appeal Tribunal can have the benefit of argument from both sides before coming to a decision. The question is not one involving finality of litigation, but with whether the decision-making process moving towards that finality is to be one fully informed by argument from both sides. Nothing I say detracts from Abdelghafar or, indeed, the later case of Aziz v Bethnal Green where, in the Court of Appeal, Abdelghafar was approved by the Court of Appeal. Nor indeed, does anything I say detract in any way from Regina v Weir reported in The Times on 9th February 2001, a copy of which Mr Stubbings produced to me.[21]Looking at the appeal before me, there are some matters which I must note. First of all the Ministry of Defence's delay was relatively short. Secondly, it did not and has not prejudiced any hearing date for the hearing of Mr Stubbings' substantive Notice of Appeal. Thirdly, the EAT is likely to be assisted by receiving argument from both sides, especially since, in part at least, the case will depend on what was said and done below and it will, of course, be convenient to have both sides here to explain what was said and done below. Fourthly and last, Mr Stubbings suffers no prejudice and has, indeed, not alleged himself to have suffered any prejudice save for the windfall possibility of his appeal being allowed to go ahead unopposed. That will be lost to him if he loses this appeal, but, if I dismiss the present appeal, that only denies him something to which he was never indefeasibly entitled in the first place. There is no other prejudice that is suffered and that windfall prejudice can very readily be put on one side.[22]Mr Stubbings has addressed me briefly and with great moderation, but I cannot accede to his application. I must dismiss the appeal against the Registrar's order.