MRS R AMIRTHANAYAGAM v THE INSOLVENCY SERVICE [2001] UKEAT 1474_00_0211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1474_00_0211Case No Appeal No. PA/1474/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS R AMIRTHANAYAGAMAPPELLANTTHE INSOLVENCY SERVICERESPONDENT
Before
Mr Justice LindsayDate 2 November 2001
[1]APPEARANCES For the Appellant ELIZABETH HODGSON (Of Counsel) Instructed by Messrs Ellis-Fermor & Negus Solicitors 2 Devonshire Avenue Beeston Nottingham NG9 1BS For the Respondent DAVID BARR (Of Counsel) Instructed by The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Roselyn Amirthanayagam in the matter Amirthanayagam v The Insolvency Service . Mrs Amirthanayagam appeals against the Registrar's refusal to extend time for her notice of appeal, which was until 1334 days late.[2]Before me today Miss Hodgson has appeared for Mrs Amirthanayagam and Mr Barr for the Insolvency Service. There is a chronology that needs to be understood as background before I come to the foreground.[3]On 9 August 1995 Mrs Amirthanayagam presented an IT1 for unfair dismissal. On 27 October 1995 the Insolvency Service put in its IT3. It claimed that the Applicant had been dismissed for conduct or for some other substantial reason.[4]On 8 January 1997 there was an Employment Tribunal hearing. The Applicant was in person. Counsel for the employer gave an open oral warning that if the Applicant proceeded and failed then an application would be likely to be made for costs.[5]Three witnesses, it seems, were heard; Mrs Amirthanayagam herself and two from the employer's side. On 20 January 1997 summary reasons were sent to the parties. The decision was that of the Tribunal at Nottingham under the chairmanship of Mr T R Capp. The unanimous decision of the Tribunal was that the applicant was not unfairly dismissed.[6]On the next day, 21 January 1997, Mrs Amirthanayagam asked for extended reasons and indicated an intention to appeal. Her letter said inter alia:
"I acknowledge receipt of the decision of the Industrial Tribunal with the summary reasons today. I intend appealing against the decision & also intend applying for the review of Tribunal's decision."
And so she asked for extended reasons.[7]On 14 February 1997 extended reasons were sent to the parties and that, of course, started time running with a view to the 42 days which are allowed for a notice of appeal. In the meantime on 12 February 1997 the Employment Tribunal had refused an application for review.[8]There is a little uncertainty about the next date but on 4 February 1997 it seems that the employer indicated that the application for costs which had been foreshadowed at the hearing would be made.[9]On 13 March 1997 there was a dramatic event in Mrs Amirthanayagam's household. Her husband (I would think, not of any great age) died suddenly. On 27 March 1997, on the last minute of that day, there expired the 42 days from the sending out of the extended reasons and hence the time for appealing in due time then expired.[10]On or about 3 April 1997, it would seem, the costs hearing, which had been applied for, came to Mrs Amirthanayagam's notice as being listed for 7 May. The date is not very significant so doubt about it does not greatly matter. On the same day, 3 April 1997, the solicitors who were acting for her, Messrs Warren & Allen in Nottingham, wrote to the Industrial Tribunal saying:
"We are no longer instructed by the Applicant in this case and would therefore be obliged if you would send all correspondence to her direct."
We have been informed that the Applicant's husband has recently died very suddenly of a heart attack and this may or may not affect the Applicant's ability to attend the hearing which has been listed." That is a reference to the intended costs hearing.[11]There was correspondence in relation to the costs hearing and on 17 April 1997 the costs application was withdrawn by the Insolvency Service. Its withdrawal was by no means unrelated to the fact that Mrs Amirthanayagam had suffered the tragic event of which I spoke.[12]There was a little confusion later about why the application was withdrawn and it did seem for a while that Mrs Amirthanayagam herself was saying that it was withdrawn on condition that she did not appeal but that has proved not to be the case and the relevance of the costs application is simply whether its existence contributed to stress that she might then have been suffering; whether, so to speak, it took her eye off the appeal, although one might equally see that if the costs application was being mounted it would strengthen the need for an appeal in that if the decision itself could be overturned then plainly her position in costs would be stronger or, if nothing else, an appeal would mean that the costs application would need to be delayed.[13]At all events, round about 17 April the costs application was withdrawn. So far I have been speaking of 1997 and periods before 1997 and there is then an enormous gap until the next relevant step, which was taken on 20 November 2000 when Mrs Amirthanayagam presented a notice of appeal to the Employment Appeal Tribunal. As I mentioned, I am told that is 1334 days late. It consists of some 5 pages of very orderly typescript.[14]The grounds asserted are firstly:
"The Tribunal erred in law in that it wrongfully denied the Appellant disclosure of relevant documents. This non- disclosure jeopardised the Appellant's ability to present her case fairly."
And that is amplified over the length of some four pages of so. And then the second ground is:
"The Industrial Tribunal erred in law in that the Appellant was not allowed by the Tribunal to present her case fully. She was cut short during the presentation of her own evidence."
And that is much more shortly amplified and the notice of appeal ends:
"The Appellant seeks a new hearing before a differently constituted employment tribunal."
[15]That, as I say, was 20 November and on the same day there was an application, very properly, for an extension of time, supported by an affidavit and by a copy letter from the Applicant's general practitioner. The affidavit said inter alia:
"On the 13 th March 1997 I returned home to find my husband dead in a chair. He died from a heart attack and his death was totally unexpected. As a result I was unable to fix my mind on the matter of my Appeal. Indeed, my health deteriorated rapidly after his death to such an extent that I became clinically depressed and had to receive prolonged and extensive treatment, which I am still receiving to some extent. Just as I was recovering a little from my clinical depression I became physically unwell. After tests were made on me I had to enter hospital for an operation in June 1998 which resulted in further complications being discovered. I was confined to hospital for nine days and underwent serious surgery. Following my surgery my depression deepened and I was still unable to concentrate my mind on bringing the Appeal which I so wanted to bring as I felt I had been wrongly and unfairly treated not only by the Respondent but by the Employment Tribunal at the hearing. I am still not fully recovered from the clinical depression from which I have been suffering but I do now feel strong enough to bring my Appeal which I am therefore lodging before the Tribunal."
And the general practitioner's letter said (I will not read the whole of it):
"I confirm that Mrs Amirthanayagam has not been in a fit to launch an appeal, as she has not been well for a long time. A series of events have led to deterioration in her mental state of health and also her physical health."
And at the end it says:
"In summary, Mrs Amirthanayagam suffered from an acute stress reaction relating to her husband's bereavement in March 1997. This was made worse due to previous anxiety regarding her dismissal from work and the tribunal and the combination led to clinical depression which she has still not yet recovered from. She has also suffered some significant physical health problems and is still not a well lady. Because of her mental health and physical health problems she has been unable to submit an appeal to date."
That was a letter dated 2 August 2000 and the notice of appeal was presented on 20 November 2000.[16]The Appellant also had prepared and lodged a thoughtful chronology spread over some 9 pages. On 27 December 2000 the Treasury Solicitor acting for the employer opposed any extension of time and the Treasury Solicitor asserted, inter alia, that there would be prejudice to the employer's side were the matter to go forward. The letter said:
"I would submit that, were the Appellant allowed to bring her appeal so long out of time, my client will be gravely prejudiced. Since being notified of the appeal in this matter I have been trying to trace my contact at the Personnel Department of the Respondent and my witnesses with no success. I certainly am unable to recall anything about the hearing (except for what is in writing) except in the most general terms and I expect my counsel, my client and its witnesses to be in a similar position, not to mention the members of the Tribunal. Further, I question how much the Applicant is really able to remember of the events of nearly four years ago."
[17]On 11 January 2001 there was a further letter from Mrs Amirthanayagam's general practitioner. It says:
"I also confirm that Mrs Amirthanayagam has still not returned to full health and is still considered unfit to work due to depression."
[18]On 12 January the Appellant sent to the Employment Appeal Tribunal her written observations on the case as to an extension of time, including a reference to her going to Canada in November 1997, a fact which had come out in the course of the earlier correspondence. She challenged whether there would indeed be any real prejudice to the employer's side. "I do not accept (says her letter) that the Respondent would be gravely prejudiced by allowing my appeal. There were only two witnesses for the Insolvency Service Mr Peter Stuart Ashcroft and Mr Peter Joyce. Both are with the Service. Indeed, simply by telephoning the Service I was able to determine that Peter Stuart Ashcroft is Regional Manager for the South West operating out of the Exeter office and Mr Peter Joyce is the Inspector General and the Agency Chief Executive. The Appeal would certainly be based on what is in writing. I have no problem recalling all the circumstances of this matter and I believe that the witnesses for the Insolvency Service will also have a good recollection of the circumstances once they read once more the statements that were made at the time and which formed part of the hearing papers."[19]That completed the evidence put before the Registrar and on 24 January 2001 the Registrar made her order. It sets matters out of some length. It said:
"AND UPON consideration of the fact that the Employment Tribunal's Extended Reasons were sent to the Appellant on the 14 th February 1997 and the Appellant admits her awareness of the 42 day limit AND UPON consideration of the fact that whilst we sincerely sympathise with the trauma of the Appellant's bereavement the time gap of nearly four years between the events allowed her sufficient time in which to have submitted the Notice of Appeal AND UPON consideration of the documents supplied by the Appellant it is noted that her doctor states that she is still suffering from depression and is unfit for work although no longer immobile AND UPON consideration of the fact that her present state of health does not prevent her lodging a Notice of Appeal now and therefore should not have prevented her lodging a Notice of Appeal before this date when a hearing could have been stayed until she was mobile or fit to make an appearance AND UPON due consideration of the judgment given in UNITED ARAB EMIRATES AND (1) MR ABDEL GHAFAR 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 IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused"
On 1 February 2001 Mrs Amirthanayagam appealed against that Registrar's decision. On 25 April 2001 there was an affidavit from Mrs Amirthanayagam. It accuses the 2 witnesses who had given evidence on the employer's side at the Employment Tribunal of perjury. It says there was gross misconduct, malice and falsification of documents in the processes deployed against her by the Insolvency Service.[20]On 8 May the matter came before me at the Employment Appeal Tribunal and I said amongst other things:
"It does not seem to me that a fairly informed decision could be arrived at today on the evidence that is currently laid before the Employment Tribunal, so I will give some directions as follows."
And a little later I said:
"Secondly, so far as concerns any allegation of prejudice, likely or possibly to be suffered on the Insolvency Services' side, the Insolvency Services are at liberty to swear and file one or more affidavits within 21 days from today on the subject. I give Mrs Amirthanayagam 14 days thereafter to answer and 7 days thereafter for the Insolvency Service to reply, if so advised."
And then, because it had come out that there was a possibility that the costs application that I mentioned earlier had been dropped on condition that there was to be no appeal, I gave directions as to that subject but that subject, as I mentioned earlier, has now fallen away because now it is more fully understood that there was no such condition, notwithstanding that Mrs Amirthanayagam seems to have thought there had been.[21]The order that I made said:
"IT IS FURTHER ORDERED that within 28 days of the date of this Order the Respondent do serve on the Appellant a written medical questionnaire directed to the Appellants ability/inability to compose and lodge a Notice of Appeal at earlier stages IT IS ORDERED that the Appellant do pass said questionnaire to her General Practitioner as soon as is practicable with a request that it be answered, a copy of the reply to be served on the Respondent and lodged with the Employment Appeal Tribunal IT IS DIRECTED that as far as concerns any allegations of prejudice the Respondent is at liberty to swear and file one or more affidavit in support thereof within 21 days of the date of this Order the Appellant to file an Answer 14 days thereafter and, if so advised, the Respondent to reply 7 days thereafter"
And then there was liberty to put in evidence relating to the chronology.[22]That led to a series of questions being put and they are best understood by just taking a few examples; thus the questions 1, 2, 3 and 4 were headed March/April/May 1997.(1) When was the Appellant first taken ill with depression?(2) At that time would you categorise her depression as mild, moderate or severe?(3) Was she able to undertake normal day to day activities?(4) Would she have been able to pursue an appeal, including conducting her own case before the Employment Appeal Tribunal/Employment Tribunal and giving evidence at the reconvened Tribunal hearing, including being cross-examined if necessary? If not, why not? The answers from the general practitioner's replies to Treasury Solicitor's questionnaire in relation to the first question was that anxiety from January 1995 became depression by March 1997 following bereavement of husband. The answer to question (2) was moderate depression, (3) the answer was unable to work in normal activities affected, (4) unable to pursue in March – tired, poor sleep, distress, ruminating about husband's death.[23]Literally taken, there is no medical evidence as to any inability of Mrs Amirthanayagam to consider, prepare and lodge a notice of appeal in February 1997 down to the 14 th , when the Employment Tribunal sent off the extended reasons. But, of course, it was entirely right for her to await the extended reasons to know how to frame a notice of appeal although the summary reasons would at least have occasioned or could have occasioned a desire to appeal, which we have seen that they did. It may perhaps be unintentional but, strictly speaking, the answers given by the doctor do not say anything as to April/May 1997. The Treasury Solicitor's question had been headed March/April/May 1997 and the answer is simply as to March 1997. Whether that omission was deliberate is not clear.[24]Answer 71 was to the question:
"Is she fit and able to pursue an appeal?"
It was framed as referable to May 2001. It was: 'Yes, she is fit to pursue an appeal but may well become anxious and stressed and possibly tearful if cross-examined in a stressful manner.[25]Answer 75 was to the question:
"If she is unable to pursue an appeal … when you do estimate she will be able to pursue an appeal? The answer was: "
I think she can pursue an appeal now and that it is better to proceed and settle the matter as the appeal hanging over is in my opinion prolonging her depression.[26]That answer number 71, speaking of the possibility of her becoming tearful if cross-examined in a stressful manner, is somewhat worrying that because it does seem to indicate that the doctor has unfortunately not been correctly informed about the nature of the proceedings and of an appeal to the Employment Appeal Tribunal being simply on questions of law. There is no prospect of Mrs Amirthanayagam being cross-examined at the Employment Appeal Tribunal, either stressfully or at all.[27]On 11 June, working out the directions that I had given, Susan Lightman, on behalf of the Treasury Solicitor for the Insolvency Service lodged an affidavit. No prejudice in terms of witnesses having died or becoming unavailable is now mentioned, but she does say:
"Whilst it is true that this case is extremely well documented, I would submit that this is not enough. Indeed, even after having reread the pleadings and the witness statements I recall very little in detail about this case, save what is in writing. I have to assume that the records are correct since they were written or prepared by me, but I do not recall most of what is recorded."
[28]Mr Peter Joyce, one of the 2 respondent's witnesses at the hearing in front of the Employment Tribunal, has submitted an affidavit. He says:
"I am employed by the Respondent as Inspector General and Chief Executive. The matters hereinafter deposed to are within my own knowledge, information and belief, save where otherwise stated."
In paragraph 3 he says:
"I gave evidence for the Respondent at the Tribunal Hearing in the terms of my witness statement and was cross examined by the Applicant."
He says:
"The Tribunal hearing was more than 4 years ago. I have read my witness statement and the papers in this case. I can state that I have no recollection of anything about this case save for that which is contained in the documents. I would be unable to give evidence save for that contained in the documents. I would be unable to give evidence save for that contained within the documents, or to be cross examined except in respect of matters in which there is written evidence."
[29]Mr Peter Ashcroft, the other of the Insolvency Service witnesses describes in his affidavit that he is employed as the Regional Manager South West and he deposes, I think in identical terms:
"I gave evidence for the Respondent at the Regional Hearing in the terms of my witness statement and was cross examined by the Applicant."
And I apprehend that his paragraph 4 is exactly the same as that put in by the other Insolvency Service witness which I have recited a moment ago. He also says that the case is extremely well documented. "I have to assume" he says "that the records are correct since they are contemporaneous documents and many were written or prepared by me but I do not recall most of what is recorded."[30]On 9 July Mrs Amirthanayagam replied. It is apparent from the terms of her reply that she has from time to time had the assistance of solicitors. She says:
"Therefore, although my solicitors were generally preparing my case for an appeal, I did insist that they submit an application for a review as I saw it as a first stage in that process."
She speaks of the shock to her, which one can understand, when her husband died and she says:
"We both decided, however, that I would continue with my appeal regardless of this threat of a further financial penalty being imposed but only after my solicitors comforted me with the knowledge that I should be able to successfully argue against the costs order being made."
And in what is a not insignificant passage she says:
"If I had been mentally stronger and more resistant at the time I might just have been able to bring the appeal in time but once the deadline passed I resigned myself to losing my opportunity to rectify, as I saw it, the wrongs that had been done to me and the loss of that opportunity, coupled, of course, with the loss of my husband, had a seriously damaging effect on my health."
[31]On 30 July Miss Lightman put in final evidence on behalf of the Insolvency Service and that completes the procedural chronology and background.[32]Coming to the foreground, after so huge a gap between the sending out of the extended reasons on the Tribunal's part and the notice of appeal, a really compelling explanation is required. Here there was, so far as the evidence suggests, no inability on Mrs Amirthanayagam's part to prepare and lodge a notice of appeal in the interval between 14 February 1997 and 12 March 1997 and, as has been seen, she had expressed desire or a decision to appeal as early as 21 January 1997, although, of course, it was in effect inchoate until her receipt of the extended reasons on, let us say, 15 February 1997.[33]But there was there an intention to appeal from the start. She was in the hands of solicitors down to 3 April 1997 and they could be expected to see a need on her part to proceed with a notice of appeal, if any appeal was intended, and, of course, to be able to prepare and lodge that notwithstanding the trauma of Mrs Amirthanayagam's bereavement. We are not told why the solicitors were uninstructed, although such seems to be the case, nor when precisely it happened. Nor do we know what advice they gave in relation to the conduct of an appeal. Nor do we know what advices were taken over the ensuing year, if any.[34]The medical evidence, strictly speaking, discloses no material inability on Mrs Amirthanayagam's part in April and May 1997; although one recognises that that might be an oversight, equally it might not be. The doctor's comment about cross-examination puts in doubt her remarks about any inability to conduct an appeal. She has to some extent been misled as to the likely possible content of an appeal at the Employment Appeal Tribunal and Miss Hodgson points out that the questions were perhaps not as neatly put as they might be but that still leaves it for Mrs Amirthanayagam's side to make out a full and satisfactory case on the medical evidence. Here there is that weakness in the evidence, that it would look as if the doctor has been addressing a question of whether an appeal could be conducted on the basis that it might include cross-examination, stressful or otherwise.[35]Mr Barr emphasises something the Appellant plainly has been able to do in the years since the sending out of the extended reasons. She had a trip to Canada and, although we are told that she was greatly assisted in relation to that trip to Canada and that it was really no more than an assisted trip for her to be surrounded by her immediate family at Christmas, it plainly is something that she was able to do. It is hard to know, without further evidence, which would be really rather disproportionate to the case, to know whether to attach any weight at all to her ability to conduct a trip to Canada and I do not propose to take that to be an indication of any material ability on her part to prepare or lodge a notice of appeal.[36]Mr Barr draws attention to the fact that she was able to obtain such documents from the High Court in May 1998 that she thought would assist her case. It may be that she did no more than write to her Member of Parliament for him to help her and that he ultimately did and that the documents came forward in that way but Mr Barr is entitled to make the point that if she was able sufficiently to switch her mind to rather legalistic issues such as the ones concerned in that then she could equally have switched her mind to the preparation of a notice of appeal and, just as she had sought assistance with getting documents from the High Court, so equally she could have got assistance with the notice of appeal. It is accepted that all along she knew that there had been a time limit.[37]So, some little weight has to be attached to that. Also there is a point which Mr Barr draws attention to as to May 1999. On 14 May 1999 she requested, through her MP, a reference from the agency that runs the Insolvency Service in order to obtain a part time job. Miss Hodgson says that it was merely that she was considering a part time job. It was not, she says, that she was actually able to take one up, even one had been available. I have no evidence on that but, again, it is a small feature that she was able to turn her mind to the possibility of working and of making a written application of the kind inherent in a letter to her MP for a reference. She was not in any way bereft of all ordinary commercial sense at the time.[38]Her notice of appeal, as I have mentioned, asks for a new hearing if she is successful before a differently constituted Employment Tribunal. If she were to be successful on appeal and there was to be a rehearing then oral evidence would need to be given as it had been before. Mr Joyce and Mr Ashcroft depose to the weakening of memory over time. Mrs Amirthanayagam's own chronology goes back to May 1994 so far as concerns contentious events. If there was to be a rehearing after an appeal it would not be earlier than late 2002 and one would be looking then at affairs more than 8 years old.[39]Prejudice needs to be considered in relation to separate steps; the prejudice possible in relation to an appeal and the prejudice possible in relation to a rehearing if the appeal was successful. As to prejudice in relation to the appeal, the notice of appeal itself brings into play and requires evidence as to the conduct of the hearing and it seems to me that it would be now difficult if not impossible thoroughly to reconstruct what exactly happened at the hearing. Mrs Amirthanayagam's case was that she was unfairly cut short during the hearing below. One would need to have evidence from those present and, indeed, a common feature of that sort of ground being raised is that the Employment Appeal Tribunal itself asks for the chairman for comments. It is hardly credible that he could remember detail of a hearing so long ago.[40]Moreover, if a rehearing were to be granted, Mrs Amirthanayagam would be likely to revive her claims of perjury, malice, falsification of documents and so on that had featured in the affidavit of which I spoke. That, plainly, would need oral evidence to a considerable degree if a rehearing were permitted. Also one of the parts of her allegations is and has been from the beginning that there was a really insignificant change in atmosphere in the office in February 1994. Thereafter, she said "I was subject to constant negative criticism which eventually turned into bullying." Well, that is exactly the sort of thing about which oral evidence would be necessary and which it seems to me to be improbable that reliable evidence from both sides could now be obtainable and be given. Such analysis apart, it is possible over so long a period to assume prejudice simply from the likelihood of the memory of witnesses having faded over time.[41]I mentioned a passage in one of Mrs Amirthanayagam's affidavits which spoke of "resignation" on her part. She said:- "I resigned myself to losing my opportunity to rectify, as I saw it, the wrongs that had been done to me. " There was there, as it seems to me, consciousness of the recognition that a deadline had passed and something very close to a decision that in the circumstances she should no longer feel it necessary, or even desirable perhaps, to continue to think about the preparation of an appeal.[42]As to the underlying merits of the appeal, Miss Hodgson rightly says that they play only a small part at most in consideration of an appeal against an extension of time being refused; I agree. But I can say, I think, that whereas Mr Barr argues that the case is manifestly an appeal that would fail, that it does certainly not manifest itself as an appeal which is obviously likely to succeed. I do not say more than that.[43]Now, gathering these various circumstances together, I do not feel able to find the compelling case that I would need if I were to grant the exceptional relief, after so long a time, of an extension of time. I have in mind the AbdelGhafar case which was referred to in the Registrar's Order and also the later case of Aziz in the Court of Appeal, Bethnal Green v Aziz, which shows that it is entirely proper for the Employment Appeal Tribunal to take a relatively strict line on extensions of time. Overall I see no good excuse shown for the totality of the delay in this matter and, equally, I do find that there is a case that the Insolvency Service would be prejudiced at the appeal itself and, were the appeal to succeed, at any rehearing pursuant thereto. That being the case I must dismiss the appeal from the Registrar's Order.