MR N WALJI v GREAT ORMOND STREET HOSPITAL [2001] UKEAT 1519_00_2604

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1519_00_2604

Case No Appeal No. EAT/1519/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR N WALJIAPPELLANT

GREAT ORMOND STREET HOSPITALRESPONDENT

Before

Mr Justice Lindsay

Date 26 April 2001

[1]APPEARANCES For the Appellant MR N WALJI (The Appellant in Person) For the Respondent MR N Chronias (of Counsel) Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal of Mr N Walji in the matter Walji v Great Ormond Street Hospital. Mr Walji's Notice of Appeal was out of time. He has been refused an extension of time and he appeals against that refusal. This morning Mr Walji has appeared in front of me in person and the hospital has appeared by Mr Chronias.

[2]The chronology is as follows. On 27 July 1999, Mr Walji presented an IT1 for racial harassment. On 26 November 1999 the hospital put in an IT3, which, amongst other things, requested a Preliminary Hearing to consider whether Mr Walji was barred by estoppel in the wider sense, he having raised some issues in that July 1999 IT1 in earlier procedings and, it was said, had then withdrawn them. The question was, was he thus able to revive those matters, which had earlier been withdrawn? On 31 March 2000, (although this only appears by inference in the papers) four of Mr Walji's complaints were struck out from that IT1 of July 1999 on the basis that he was estopped in the wider sense. On 12 May 2000 Mr Walji presented a second IT1 for unfair dismissal and for racial discrimination. On 6 June, the hospital put in an IT3 and in the course of a very extensive and detailed defence, the hospital requested a Preliminary Hearing to consider whether parts of the IT1 (that is to say, the second IT1) were barred by lapse of time. There were now two IT1's in front of the Tribunal.

[3]On 11-12 September 2000, there was a hearing at the Employment Tribunal. On 6 October, the decision was sent to the parties. It was the decision of the Employment Tribunal at London Central under the Chairmanship of Mr D H Roose. The decision was unanimous and was:

"That the Respondent did not unlawfully discriminate against the Applicant on racial grounds."

Although the decision itself, just those few words which I have just quoted, and the extended reasons would seem to deal both with the July 1999 IT1 and that of May 2000, the case number, put in the top right hand corner of the front page of the decision, only referred to one of the two IT1's. That decision was sent to the parties on 6 October. On 13 October, a notice of a correction was sent out, simply adding the second case number to be read in to the top right hand corner of the first page. On 13 November, the Commission for Racial Equality (the CRE) wrote to Mr Walji a letter of some significance; it says this:

"Further to our telephone conversation of today I confirm that the deadline for your appeal to the Employment Appeal Tribunal runs from the date of the reserved decision of the Tribunal, 6 th October 2000. It is your responsibility should you decide to do so to submit your appeal on a point of law. I know you are awaiting the decision of the review but this is a decision on facts and not law and should not affect whether your case goes to Employment Appeal Tribunal. If you have any query my direct line is ……."

On 17 November the period of 42 days prescribed during which an appeal can be lodged (which relates to the date on which the decision is sent to the prospective Appellant) expired. On 23 November, the Employment Tribunal declined Mr Walji's application to review their decision. 24 November was the date of the expiry of 42 days from 13 October, the date on which the notice of correction had been sent out. On 29 November, Mr Walji put the date to a letter sent to the Employment Appeal Tribunal that was received on 30 November; with it he sent a Notice of Appeal. He accepted that he was 4 days out of time. He said that he had not realised that he could appeal on the ground of judicial bias, as a ground amounting to an error of law, until the very day before, 28 November.

[4]The Notice of Appeal which was received on 30 November, as I mentioned, indicates that it is an appeal against a decision described as follows:

"Held at Central London on 11-12 September 2000. Decision made on 6 th of October 2000. Corrected copy sent out on 13 th of October 2000. The decision was "that the respondent did not unlawfully discriminate against the applicant on racial grounds." "

It is quite plain what subject matter is sought to be appealed. Then in paragraph 6 which in the printed form says:

"The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that - …. [then it is required to be completed by the prospective Appellant and Mr Walji has added] They are guilty of administrative harassment and have demonstrated judicial bias in favour of the respondent."

It is to be noted that that does not seek to be an appeal against the failure to review of the 23 November, but only against the decision of 6 October as corrected on 13 October. On 6 December the Employment Appeal Tribunal wrote to Mr Walji saying that he was 13 days out of time, taking the time to run from 6 October. On 7 December, Mr Walji wrote back saying that he was, at most, 5 days out of time, measuring from 13 October. It has throughout been recognised by Mr Walji that his appeal is out of time.

[5]On 8 January, the Employment Appeal Tribunal, as is customary in these cases, wrote to the Respondent to find out what views the Respondent had on the subject of the extension of time that was being sought. On 19 January, the Respondents gave a reasoned answer objecting to any extension of time. On 22 January 2001, Mr Walji said that he had nothing further to add to his earlier argument or case; consequently the matter was considered by the Registrar. On 23 January 2001, the Registrar made an order refusing an extension of time. On 30 January, by a letter of that date, Mr Walji wrote to the Employment Appeal Tribunal seeming to argue that as his Notice of Appeal was within 42 days of the refusal of the review, that should suffice to entitle the matter to go forward, but that is not the law. The 42 days runs from the sending to the Appellant of the decision in the Employment Tribunal, whichever decision is in question. It had been emphasised to him by the CRE letter that I read a moment ago that that was the position. Moreover the Notice of Appeal, as I mentioned, does not purport to be an appeal against the refusal to review. On 14 March 2001, there was a letter from Mr Walji to the Employment Appeal Tribunal making some corrections to his letter of 30 January. On 18 April, Mr Walji sent a skeleton argument to the Employment Appeal Tribunal; one of the points he makes is this:

"The decision to refuse to review the original decision of the 6 th of October 2000 is an act of victimisation as is the original decision in that it covers up or refuses to consider any and all of the evidence presented." but, as I mentioned, the Notice of Appeal which is in issue is not concerned with a refusal to review, so the point there taken is of no relevance to today's business. Then, as Mr Walji plainly believes that attack is the best form of defence, he adds this: "

The Registrar, since she is responsible for the contents of Mrs Clemerson's letters, has from the start been deliberately obstructive and intentionally delayed matters." He then sets out at some length a fuller explanation of the nature of his complaint on that score. Suffice it to say that the attack he describes does nothing to add a satisfactory explanation for his delay in lodging a Notice of Appeal against the decision of 6 October or 13 October.

[6]There is no question but that he was aware of the 42 day period; he himself accepts that it is obvious that that was the case. The CRE had emphasised that point to him, that time ran from 6 October. It is implicit in the CRE's letter to him that I quoted from that he could not safely await the decision on review before lodging a Notice of Appeal. Mr Chronias has referred me to the leading case in this area, United Arab Emirates v Abdelghafar

[1995] ICR 65

, a decision of Mr Justice Mummery at the Employment Appeal Tribunal which is habitually referred to in such cases I will briefly quote from it; at page 70 in the report, it says this:

"An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable." [then a little later] "

The limit will, therefore, only be relaxed in rare and exceptional cases where the appeal tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules." [and a little later still] "If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted." A pending review application is said in Abdelghafar not to suffice as a ground for delay in appeal against the substantive decision.

[7]The Abdelghafar case also makes it clear that a consideration of the merits of the underlying appeal plays only a relatively small part in considering whether there should be an extension of time because otherwise one would, in effect, have to hear the appeal to determine whether the appeal could be heard, which would be a ridiculous situation at which to arrive. Suffice it to say that the grounds of appeal that I cited earlier do not shine out as having an obvious prospect of being a winner. Nor is it usually regarded as an exceptional ground that the Appellant claims to have been advised that he had no ground of error of law on which he could rely. If any such advice that was given was wrong, then the person so advised would have to consider relief against his advisers for mis-advising him. It would not usually amount to a factor in considering whether there should be an extension of time – see Abdelghafar – any more than would be the fact that a solicitor had failed to lodge in time through oversight or because of pressure of other business. If any such advice given, namely that there was no error of law, was right, then that plainly could not be a ground for permitting an appeal to proceed because that would lead to a position in which one was allowing to go forward a case where, it being right that there was no error of law, the appeal would be bound to fail.

[8]Generally speaking, having particular regard to the CRE's clear letter to Mr Walji, I have been unable to see any ground that satisfies me, within the approach directed by the United Arab Emirates v Abdelghafar case, so as to enable me to say that sufficient ground has been shown for the exceptional relief of granting an extension of time. I have not been able to find any good ground emerging from Mr Walji's papers, or indeed, from the oral argument on his part, which has been very brief. The Employment Appeal Tribunal habitually takes a relatively strict line in cases such as this. In the case Aziz v Bethnal Green in the Court of Appeal that strict approach was queried but emerged unscathed.

[9]Mr Walji has written a further letter of 23 April 2001, which I have had in mind, and also with annexes which I also have in mind, but his principal ground of attack in that added material is as against the CRE rather than relating to why it was , in detail, that there was delay in the submission of a Notice of Appeal. It does not, as it seems to me, add anything of significance to the earlier material which Mr Walji submitted. Mr Walji also takes a point under The Human Rights Act but it is the case that there is nothing intrinsically offensive in Human Rights terms about time bars. All sorts of proceedings have limitation provision included within them; especially is a time bar likely to be inoffensive in Human Rights terms where it concerns an appeal where there has been already a decision on the merits, which is the position in this case. I find nothing offensive in Human Rights terms in the Registrar's order under appeal. Reverting more generally to the case, having not found any good ground for extending time, I must dismiss Mr Walji's appeal.