MR D G MALKAN v (1) NHS EXECUTIVE (WEST MIDLANDS) (2) THE POST GRADUATE DEAN (3) DEPARTMENT OF HEALTH (4) THE SENATE OF SURGERY OF GREAT BRITAIN & NORTHERN IRELAND [2001] UKEAT 200_00_3001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 200_00_3001Case No Appeal No. EAT/200/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D G MALKANAPPELLANT(1) NHS EXECUTIVE (WEST MIDLANDS) (2) THE POST GRADUATE DEAN (3) DEPARTMENT OF HEALTH (4) THE SENATE OF SURGERY OF GREAT BRITAIN & NORTHERN IRELANDRESPONDENT
Before
Mr Justice Lindsay
[1]APPEARANCES For the Appellants MR W PANTON (of Counsel) Commission for Racial Equality Maybrook House Fifth Floor 40 Blackfriars Street Manchester M3 2EG For the First, Second and Third Respondents MISS J COLLIER (of Counsel) The Office of the Solicitor Room 523A The Department of Health New Court 48 Carey Street London WC2A 2LS For the Fourth Respondent MS TESS GILL (of Counsel) Paisner & Co Solicitors Bouverie House 154 Fleet Street London EC4A 2DQ MR JUSTICE LINDSAY (PRESIDENT) : I have before me in this part of the case an application by Mr D H Malkan appealing against the Order of the Registrar made on 19th July 2000 whereby the Registrar declined to extend time for the lodging by Mr Malkan of a Notice of Appeal. The case is unusual in a number respects, one of which is that Mr Malkan undoubtedly has a cross-appeal duly lodged as to which no point of time bar arises and that the appeal which he wishes to pursue and as to which he seeks an extension of time is in identical terms or almost identical terms to that cross-appeal. The difference between the two cases is that if the appeal for which he seeks an extension is permitted to go forward then the Post Graduate Dean, Professor Temple, will be involved in the further conduct at the EAT in a way in which he is not if only the cross-appeal goes ahead. Miss Collier on behalf of, inter alia, the Post Graduate Dean says that to involve him at this late stage where the case is already one of immense delay, in the sense that the material events are already relatively stale, is an important factor that has to be taken into account. That is one unusual feature of the matter.[2]The other is that although the Order in question, which grew out of an oral hearing that spread from December 1997 to August 1999, is endorsed as being sent to the parties on 21st December 1999, it was not promptly received as the ordinary course of post would suggest by all parties; that is plain from a letter written by the Office of the Solicitor to the Department of Health and Social Security on 13th January 2000 to the Regional Secretary of the Employment Tribunal where, for that solicitor, it was written:
"I was informed that the decision was sent to the parties on 21 December 1999, however this office has not yet received a postal copy and subsequent enquiries have been made within this office to determine whether or not this document had in fact been received or had been replaced. Unfortunately this has been to no avail. The Applicant has received the decision as stated in his letter of 29 December 1999 and I am aware that Paisner & Co Solicitors, who represent the fourth Respondents, have also received this decision and have notified their clients accordingly. It is under unfortunate circumstances that we have experienced a delay of nearly three weeks in receiving this document, and are only now informing our clients of the decision. We would therefore respectfully ask the Tribunal to confirm in writing that the written decision in the above matter was sent to the 1st, 2nd and 4th Respondent on 10 January 1999."
That met with an answer from the Employment Tribunal signed by the Regional Secretary on behalf of the Chairman, Mr C J Goodchild who had dealt with the case, and the letter says:
"The Chairman, Mr C J Goodchild has instructed that he is prepared to accept that you did not receive a copy of the decision, in the above case until 10 January 2000. This is due to an administrative error, which may or may not fall to this office. He confirms that the time runs from the 10 January 2000 and that this applies to all parties. He is anxious that the remedy hearing should be heard as soon as possible. I am copying our exchange of correspondence as indicated below."
A copy was sent to the Commission for Racial Equality, who were acting on behalf of Mr Malkan.[3]Taking the decision to be sent to the parties on 21st December 1999 as is endorsed on the decision, the 42 days allowed for appeal would have expired on 1st February 2001 and by that date there was no appeal lodged by Mr Malkan. But then, before that 42 days had expired, Mr Malkan's advisers would have received the letter of 17th January 2000 from the Chairman, which I have read, which says that the 10th January 2000 is a date that is to apply to all parties. Mr Panton on behalf of Mr Malkan says that his client could, not unreasonably, take it that that extension, said to apply to all parties that date of 10th January 2000, was correct. If the 10th January 2000 was the starting point the time would not have expired until 21st or 22nd February 2000 and in fact, Mr Malkan's Notice of Appeal was received on 16th February 2000. So if the advisers to Mr Malkan were entitled to rely upon the Chairman's letter indicating that 10th January 2000 was to apply to all parties, their Notice of Appeal was in time.[4]Two things impress me or perhaps I should say three, because I have to bear in mind a balance between the position Mr Malkan and the position of the Post Graduate Dean that I have already referred to.[5]First of all, given that the Chairman writes that there is "an administrative error, which may or may not fall to this office" - rather an extraordinary thing to write – how can I be sure that the endorsement that the decision was sent to the parties on 21st December 1999 was true? It certainly is not consistent with the non-receipt by the first, second and fourth respondents and so there is a real doubt not only arising out of the non-receipt by those parties, but also out of the Chairman's letter of 17th January 2000 as to whether the date endorsed is accurate. If it is inaccurate, well then, when does time start running? As to which there is no answer. But another point of the three that I have mentioned was that surely it can be said, and Mr Panton says it, that when the Chairman writes that the 10th January 2000 is to apply to all parties as a starting date, that is capable of being relied on. It may well be that the Chairman had no jurisdiction or authority so to rule, but one cannot expect parties to have to rush to the Rule Book to see whether what a Chairman says is a thing that the Chairman is entitled to say. It seems to me entirely reasonable that the Commission for Racial Equality receiving that letter, could fairly take it that they had 42 days from the 10th January 2000, notwithstanding that they had themselves received the decision on or about 29th December 1999. Those factors seem to me to be factors that readily distinguish this case from the familiar case of Abdelghafar and the later case of Aziz v Bethnal Green . It seems to me that here even taking into account, as a third factor, the difficulty that the matter will cause to the Post Graduate Dean, that this is case where it would be right to extend time and to that extent I allow the appeal and extend time until 17th February 2000, thereby validating the Notice of Appeal which I apprehend was actually received by the EAT on 16th February 2000.