MR T SOJIRIN v NATIONAL CAR PARKS LTD [2001] UKEAT 424_00_1501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 424_00_1501Case No Appeal No. EAT/424/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T SOJIRINAPPELLANTNATIONAL CAR PARKS LTDRESPONDENT
Before
His Honour Judge A WilkieDate 15 January 2001
[1]APPEARANCES For the Appellant MR T SOJIRIN IN PERSON For the Respondent OLIVER SEGAL (of Counsel) Instructed By: Mr R D Hendry Collinson Grant Ltd Colgran House 20 Worsley Road Swinton Manchester M27 5WW JUDGE WILKIE QC : This is the hearing of an application by Mr Sojirin for an extension of time to permit him to appeal to the Employment Appeal Tribunal against a refusal by an Employment Tribunal Chairman on 29 May 1997 to permit him a review of a decision of the Employment Tribunal dated 4 July 1996, dismissing his application for a finding of unfair dismissal against National Car Park Ltd. It is only if we decide to extend time as requested that we may consider his substantive appeal.[2]This is a most unfortunate case with a long and chequered history. The appellant was dismissed by NCP on 30 October 1995 for failure to carry out his duties. On 17 January 1996 he launched unfair dismissal proceedings at that time acting by Bhardwaj & Co, solicitors. It appears that the matter was initially set down for hearing on 18 June 1996 and notification of that date was sent to Bhardwaj & Co. On 16 May 1996 they wrote a letter to the appellant informing him of the hearing date of 18 June and stating "If you would like us to assist you then please place us in funds otherwise kindly place yourself on the record with the Tribunal and deal with the matter as appropriate". Mr Sojirin in the hearing before us indicated that he had no recollection of having received this letter.[3]It appears, however, that the question of his acting through solicitors was the subject of discussion and his last contact with that firm was at the end of May 1996. By notice dated 29 May 1996, the Office of Industrial Tribunals sent a Notice of Hearing to Mr Sojirin and NCP. The Notice went respectively to their solicitors and, in particular, to Bhardwaj & Co. The hearing was to take place on 4 July 1996.[4]On that date the hearing did take place. The applicant did not attend nor did his solicitors. The tribunal decision records that the case did not proceed until 10:30 am as the applicant had not appeared. He was telephoned at the number given on his notice of application and also the number of his solicitor but there was no reply from either call. The hearing then proceeded and having heard evidence from the respondent the tribunal concluded that the dismissal was fair and the application was dismissed. Mr Sojirin says that he had no notice of the hearing on 4 July. Accordingly he says that the Industrial Tribunal's decision was taken without him having the benefit of having an oral hearing at which his side of the matter might be canvassed.[5]On 1 October 1996 Mr Sojirin wrote to the Office of the Tribunals informing them that as he was not entitled to legal aid he would like to represent himself. He made a particular request that all communication be directed to his home address "including the date of hearing". Of course by this time the hearing had come and gone. On 23 October 1996 the tribunal wrote to him informing him that the Notice of Hearing had been sent to his solicitor's address on 29 May 1996, the case had been heard on 4 July and it enclosed a copy of the decision. Attached to that decision was the usual document setting out comprehensive notes on tribunal decisions and, in particular, the steps open to a disgruntled party.[6]Mr Sojirin did not have sight of either the letter or the enclosures until about 15 January 1997. This was because he was, from 21 October until 15 January, in Nigeria visiting his sick mother and for some part of the time also suffering from an illness himself. This much is established from stamps from his passport which were placed before us.[7]On his return and upon having read the decision and enclosures Mr Sojirin wrote to the tribunal on 24 January 1997. He says as follows:
"I am very surprised to receive a letter from you that because you sent the notice of hearing to my solicitor on 29 May 1996 and there was no reply so that was the end of the case."
In that letter he also stated that he would like a retrial:
"But in case a retrial is not possible let me know so that I can sought (sic) a judicial review in the High Court."
[8]On 4 February 1997 the Industrial Tribunal wrote to Mr Sojirin asking him for the case number to enable them to process his enquiry more efficiently. He gave them that information on 11 February 1997 by Recorded Delivery. On 3 April 1997 it is apparent that Mr Sojirin wrote a letter to the tribunal formally asking for a review. Other than that we do not know what were its terms as no copy has been retained either by the tribunal or by Mr Sojirin. Suffice it to say it was this formal application for a review dated 3 April 1997 which triggered the decision from which Mr Sojirin seeks leave to appeal out of time.[9]The tribunal chairman decided to deal with this application for a review pursuant to rule 11(5) of the 1993 Regulations and she refused it on the basis that she was of the opinion that it had no reasonable prospect of success. She did so, accordingly, without any hearing. The essential basis of the decision was that at all material times until October 1996 the applicant was acting by solicitors to whom the notice of the hearing had been sent. Furthermore, the application for review was presented outside the time limit, a copy of the decision having been sent on 23 October 1996 and the application for a review not having been received until 1 May 1997. This decision of the chairman was taken on 29 May 1997 and sent to Mr Sojirin in the normal way.[10]In the meantime on 6 May 1997 Mr Sojirin launched an appeal against the substantive decision of the Industrial Tribunal on the ground that the decision had been made in his absence on 4 July and as a result he wanted a retrial. The grounds upon which the appeal was brought state:
"Neither my legal representative nor I was informed of the date of the hearing. The Tribunal is in breach of natural justice in hearing the case in my absence and without informing me."
On 13 May 1997 the appellant wrote to the EAT with an application for an extension of the time limit to enable him to launch the appeal against the substantive decision of the tribunal dated 4 July. In that letter he repeated that neither his legal representative nor himself was informed of the date of the hearing. He also set out the history of his absence from the country during the crucial period within which the Industrial Tribunal decision had been sent to his home address.[11]In an endeavour to bolster his claim that his legal representative had not received notice of the hearing on 4 July, Mr Sojirin on 14 July 1997 wrote to Bhardwaj & Co a Recorded Delivery letter. In that letter he says, amongst other things, as follows:
"The Tribunal said that they sent the date of hearing to your office on 29 May 1996 and that the case was held on 4 July 1996. I am sure that if they did you would inform me as I was still getting in touch with you up till the end of May 1996. I wrote in my letter to the Chairman of the Tribunal that neither I nor my solicitor received the date of the hearing. The Tribunal deny this and refused my case to be reinstated so as a result I want to proceed to High Court to sought a judicial review. As a result I want a letter from you to confirm this in support of my application."
There is no record of any reply to this letter. Some two years later in the context of judicial review proceedings with which we deal below, the Advice Bureau at the Royal Courts of Justice wrote letters dated 12 and 14 May 1999 to which on 18 May 1999 a firm of solicitors Dhama Douglas & Co of which R.C. Bhardwaj was described as the consultant replied. That letter contains the following statements:
"Mr Bhardwaj having retired from his practice has allowed this firm to reply to any queries that arise on his files and on this basis we have been able to obtain the file concerning Mr Sojirin from storage. The papers indicate that while Bhardwaj & Co received notification from the Industrial Tribunal for a hearing due on 18 June 1996, there appears to have been no further notice received in respect of any adjourned hearing. Bhardwaj & Co advised Mr Sojirin that he should either place this firm in funds to act for him or place himself on record with the tribunal and deal with the matter himself. There is no record of what he did. The dealings with Mr Sojirin appeared to have been under the Green Form Scheme."
A copy of the letter already referred to from Bhardwaj & Co to Mr Sojirin dated 16 May 1996 was enclosed with this letter.[12]On 2 June 1997 the Registrar of the EAT refused the appellant's application for extension of time to appeal the decision of the Industrial Tribunal dated 4 July 1996. The appeal had been presented 241 days outside the 42 day time limit and the registrar considered the letter of the appellant dated 13 May 1997, together with a letter of the respondent dated 24 May 1997 and further submissions of the appellant dated 30 May 1997.[13]At this point the correct course for the appellant to have adopted would have been to launch an appeal against the chairman's refusal of a review dated 29 May 1997 upon which time was by now running. For his own reasons he chose not to do so but embark upon wholly misconceived proceedings in the High Court by way of judicial review against the Industrial Tribunal. These proceedings were commenced by application dated 28 August 1997. The first leave hearing did not take place until 20 May 1999. Mr Justice Turner adjourned the application for leave for three weeks so that the respondent might attend and make representations. On 11 June 1999 that hearing resumed before Mr Justice Scott Baker but was again adjourned for 21 days, the Industrial Tribunal not having attended. The order of Mr Justice Scott Baker was that the Crown Office notify the respondent and request their attendance for the next hearing and if they did not wish to attend to forward reasons as to why they would not attend. The hearing resumed on 2 July 1999 before Mr Justice Jackson and both Mr Sojirin and the Industrial Tribunal were represented. The application for permission to apply for judicial review was refused. It is plain that in the course of his reasons for refusing permission Mr Justice Jackson advised Mr Sojirin that his application was misconceived but that it was still open for him to seek permission to appeal out of time against the Industrial Tribunal's refusal of a review by its chairman on 29 May 1997.[14]Mr Sojirin appealed the decision of Mr Justice Jackson to the Court of Appeal. However, before that hearing took place he sent to the EAT on 9 July 1999 a letter which appeared to be an application for an appeal against the decision of the registrar in chambers, apparently against her refusal of the extension of time to appeal to the EAT against the finding of fair dismissal dated 4 July 1996. On 25 August 1999 this appeal was put on a more formal footing in the form of a notice which makes it clear that the subject of the appeal was the decision made in his absence on 4 July 1996 and the decision of the registrar of the Employment Appeal Tribunal.[15]Although Mr Sojirin has tried to persuade us that his letter of 9 July 1999 is to be read as if it were an appeal against the chairman's refusal of a review dated 29 May 1997, we are unable to accede to his request so to read it. It is plain from its terms that it is not such an appeal. Furthermore, the terms of the formal Notice of Appeal dated 25 August make that absolutely clear. Furthermore, Lord Justice Sedley in the leading judgment in the Court of Appeal delivered on 21 February 2000 made it clear that he understood that his appeal following the refusal by Mr Justice Jackson of permission focused on the wrong decision, namely the 4 July 1996 rather than 29 May 1997 and in his skeleton argument before us Mr Sojirin describes the 9 July 1999 document as an appeal against the decision of the registrar to the judge of the EAT.[16]The Court of Appeal upheld the refusal by Mr Justice Jackson of permission on the footing that it was utterly misconceived and that Mr Sojirin's proper route was to seek to appeal the decision of the chairman of the tribunal dated 29 May 1997. Even then Mr Sojirin did not properly address the question of the decision from which he ought to be appealing until after the preliminary hearing of this tribunal which took place on 12 June 2000 following upon which, on 26 June 2000 and with leave of the Employment Appeal Tribunal, he amended his 25 August 1999 Notice of Appeal to add an appeal against the decision made by the chairman of the Industrial Tribunal sitting alone on 29 May 1997, whereby she refused an application for a review on the ground that she erred in sitting alone when reaching the decision and failed in breach of the rules of natural justice to give the appellant an opportunity to address the tribunal before refusing the application. That amended Notice of Appeal was received by the EAT on 10 July 2000 which is exactly three years after the time to appeal against the chairman's decision of 29 May 1997 expired. The application for extension of time[17]We have been referred both by Mr Sojirin and Mr Segal for the respondent to the relevant authorities on the principles to be applied when an application is made to extend time for appeal to the Employment Appeal Tribunal from decisions of Employment Tribunals. In particular we have been referred to the cases of Marshall v Harland and Wolff Ltd [1972] ICR 97 and United Arab Emirates v Abdelghafar [1995] ICR 65 , in particular the principles: that the time limit laid down in the rules will be relaxed in only rare and exceptional cases; that the EAT must be satisfied that the explanation for the delay is full, honest and acceptable; that even a delay of a day or two may prove fatal; that ignorance of the time limit is not an acceptable excuse even for an unrepresented appellant; that the fact that there may be another application pending is no excuse (see Practice Direction, paragraph 3(1)); that the length of the overall delay is a material factor; but that the merits of the substantive appeal are usually of little weight as is any issue of prejudice to the respondent.[18]Mr Sojirin has sought to argue that this is a rare and exceptional case. He has indicated the serious effect that the decision of the Industrial Tribunal has had upon him. He claims that he has been unable to work since his dismissal because of his inability to provide a reference from his previous employer. He has brought to our attention documentation which appears to indicate that he is very substantially in arrears with his rent and that he and his family are facing eviction from their home. He claims that this is as a result of being unable to obtain employment flowing directly from his, as he sees it, unfair dismissal.[19]In our judgment, however, this is not a case in which, consistent with all the principles we can grant the indulgence sought by Mr Sojirin by extending the time for launching an appeal against the decision of the tribunal on 4 July 1996, the chairman on 29 May 1997, nor against the refusal of the Registrar dated 2 June 1997. It is plain that, in reality, the decision appealed against is that of the Chairman dated 29 May 1997. No realistic appeal lies against the decision of the Tribunal dated 4 July 1996 nor the Registrar. Both are long out of time and we refuse leave. It is plain that at the time the decision of 29 May was being taken Mr Sojirin was well versed in the availability of an appeal against a decision of an Industrial Tribunal together with the fact that time limits were involved and that applications for extensions of time might be necessary. It is clear that, from very shortly after the decision of the chairman and the refusal of the registrar to grant him extension of time for an appeal against the decision of 4 July, he was determined to seek his remedy through the route of judicial review in the High Court. This was an utterly wrong-headed view for him to take.[20]Furthermore, even if his view that the correct course for him to adopt was by way of judicial review in the High Court, were an acceptable excuse initially, after the refusal of permission by Mr Justice Jackson in July 1999 he had been advised that his course was misconceived and that his better option was to seek leave to appeal out of time against the Chairman's decision. He steadfastly refused to take that advice. He persisted in pursuing his judicial review application to the Court of Appeal and he persisted in pursuing hopeless appeals to the Employment Appeal Tribunal against the decision of 4 July and the refusal by the registrar of permission to extend time for appealing against that decision. Even after the Court of Appeal in February 2000 had given him clear and procedurally sound advice he still failed to address the question appropriately until a further four months had elapsed in June 2000.[21]The facts of this matter, regretfully, compel us to the conclusion that this is not a case in which it would be proper for us to grant Mr Sojirin the extension of time he seeks to launch an appeal against the chairman's decision of 29 May 1997. Accordingly we refuse leave and all the appeals must fall at this stage.[22]This is, however, a decision which we come to somewhat regretfully. It is, of course, a matter of regret that a finding of fair dismissal in what appears to be a highly contested dispute should have been made in the absence of the applicant and in circumstances in which, it appears, he was unaware of the hearing date. We are unable to determine from the paperwork whether that was due to the non-delivery to Mr Sojirin's then solicitors of the notice of the hearing or their failure, for their own reasons, to communicate this matter to Mr Sojirin. A further matter for regret is that it does appear to us that, had we felt able to grant Mr Sojirin an extension of time for appealing against the decision of 29 May 1997, it is likely that we would have acceded to his appeal. We have been referred to the case of Hancock v Middleton [1982] ICR 416. In that case it was decided that it was inappropriate for a chairman sitting alone to determine a review application summarily as being one without reasonable prospect of success where the issue concerned a question of credibility over an applicant's claim not to have received notice of a hearing nor, in that case, to have received notification of the decision in time to have enabled him to launch an application for a review in time. In the present case we are gravely handicapped by not having the letter of 3 April 1997 in which Mr Sojirin launched his review. Therefore we cannot conclude, one way or another, whether in that letter he made reference to the fact that he had not had notice of the hearing date nor that he believed his solicitors not to have had that notice. If he did make either of these two claims in that letter then it seems to us that it would have been an error for the chairman of the tribunal to have dealt with the matter summarily pursuant to rule 11(5) rather than convoking a hearing under rule 11(6). In any event the tribunal already had correspondence from Mr Sojirin dated 1 October 1996 in which the clear inference was that he had no idea that the hearing of his claim had already taken place on 4 July. Had the tribunal chairman had sight of that letter, as we are sure she must have done, then that letter on its own may well have been sufficient to have raised alarm bells sufficient that she should have been persuaded that this was an application for review which ought properly to be determined by a full tribunal after a hearing.[23]We make, however, no finding on this issue because we are not hearing the appeal against the decision of 29 May 1997 as we have felt obliged to refuse Mr Sojirin leave to appeal against that decision out of time. Therefore the conclusion of these appeals are that all are dismissed having been brought out of time, no leave to extend time being granted.