MRS J L DAVIES v COOPER CLEANING UK LTD [2002] UKEAT 1136_01_1804

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1136_01_1804Case No Appeal No. PA/1136/01 PA/1150/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J L DAVIESAPPELLANTCOOPER CLEANING UK LTDRESPONDENT
Before
Mr Justice LindsayDate 18 April 2002
[1]APPEARANCES For the Appellant MISS JOANNA HEAL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Mrs Janet Davies in the matter Davies against Cooper Cleaning UK Ltd. Mrs Davies appeals against the Registrar's refusal to extend time for the lodging of what was otherwise an out of time Notice of Appeal.[2]Today, and on one previous hearing, Mrs Davies has been represented by Miss Heal under the ELAAS system.[3]Cooper Cleaning UK Ltd, it transpires - certainly this is the information that has come from a director or erstwhile director of the company - is in Administrative Receivership and no one has appeared for that company.[4]One has to have a clear grip of the chronology of the matter and I will set that out with some additional mentions of indications as to Mrs Davies' mental condition at various stages in the chronology because her mental condition is a not unimportant factor.[5]22 December 1999 was the last day Mrs Davies worked regularly for Coopers. Thereafter she was off sick from time to time with flu and a chest infection. She said that she hoped to be signed fit to return to work. She in fact returned on 29 December 1999; on 30 December and 31 December she collapsed whilst at work. On 28 January 2000 Cooper Cleaning dismissed her. On 11 April 2000 Mrs Davies presented her IT1. I will describe the claims within it later.[6]Just interposing a medical mention: on 30 May 2000 the CPN (that is the Community Psychiatric Nurse who was responsible for dealing with Mrs Davies) wrote about an exacerbation of her severe depression and on 8 June 2000 spoke of her recurrent depression, indicating that Mrs Davies was taking antidepressants and had difficulty in articulating her thoughts because of stress.[7]On 9 June 2000 – although, in a way, this is hardly relevant it is mentioned several times in correspondence - the Chairman at the Employment Tribunal, Mr de Saxe, ordered a preliminary hearing as to whether she was disabled within the Disability Discrimination Act 1995 . On 12 June that Decision was sent to the parties.[8]On 27 July 2000 there was again a medical indication coming out of the papers; it was said that Mrs Davies was very depressed but that there was no sensory or cognitive impairment.[9]On 22 August 2000 Coopers denied disability. On 14 September the Employment Tribunal ruled that the question of whether Mrs Davies was disabled or not was to go to a full merits hearing.[10]On 29 September 2000 - again this is a medical note to be interpolated - it was said that if her depression was untreated then her ability to concentrate would be affected. That was said by her doctor, Dr Whitfield.[11]On 24 and 25 October 2000 there was a hearing at London South. Mrs Davies gave oral evidence. She was represented by a Mr Mills of the Greenwich Community Law Centre. It would seem that at the end of the oral hearing the result was orally announced. It seems plain that she knew at the end of the day that she had lost.[12]On 1 November 2000 the Tribunal's Decision was sent to the parties. It was the Decision of the Tribunal at London South under the chairmanship of Mr D.N. Milton and the unanimous decision of the Tribunal was that the claim of disability discrimination was unsuccessful; the claim in breach of contract was dismissed save as to a small sum paid by consent and the claim of unlawful deductions was withdrawn. It was, of course, the claim of disability discrimination that was the most important part of that decision, certainly as Mrs Davies saw it.[13]The time for lodging a timely Notice of Appeal runs from the sending out of the Decision of the Tribunal and it is a relatively generous period of 42 days. That 42 days expired at the last moment of 13 December 2000. Nothing was heard within that period.[14]On 24 August 2001 - one notices the long gap - a Notice of Appeal was received with, attached to it, a letter dated 12 August 2001. Treating it as a Notice of Appeal, it was some 254 days out of time. It was 113 pages of longhand in Mrs Davies' own writing. It does not say very much of relevance to the issue of extension of time but there are some points in it that ought to be noted. She says in page 80 of her long letter:
"I was already under a CPN Nurse at Meridian Mental Health in Charlton, SE7. Also I have always been on medication. I saw my CPN Nurse every week, also my GP every week or more."
A little later, in the long letter, she says:
"So please could someone deal with my epic letter urgent because it has taken me this long since my hearing to try and get better. I am thinking much clearer now. It is a pity I wasn't when I came to my hearing on 24 October but then again I trusted the Tribunal to help me, also Barry Mills. [Pausing there: he was, as I mentioned, the representative acting on behalf of the Greenwich Community Law Centre] who also let me down and never represented me properly by not appealing on time like he promised me and he didn't do what he said he would do for me."
[15]The Employment Appeal Tribunal, having received that long letter and treating it as a Notice of Appeal (which it was competent to treat it as) asked whether she was asking for an extension of time and on 30 August 2001 Mrs Davies wrote a further 12 pages or so of handwriting directed, or intended to be directed, to the issue of an extension of time. To use her own phrase, she "goes round the houses". But she does say that she had been unwell for a long time and, indeed, had tried to take her own life and was receiving psychological advice. She did say she was fit to work and, indeed, said it would be better for her were she working. She also made it plain that she was in receipt of DLA (Disability Living Allowance) including Mobility Allowance. She cast some blame on her representative Mr Mills of the Greenwich Law Centre. She said:
"I blame Mr Barry Mills for this also, because I was ill on the day of my hearing and I trusted Mr Mills to act on my behalf. Even my CPN Nurse couldn't believe I never won and also my GP. That is why Mr Mills did not appeal for me and let the 42 days elapse because how could he appeal when he messed up. He has admitted it to me a few weeks ago and told me to sue the Greenwich Law Centre. He also sent me a letter last week saying he couldn't talk to me any more because I told him I was appealing to the EAT for 'out of time' appeal."
A little later, in the same letter, she says:
"Even after the dismissal I had suffered 2 nervous breakdowns. My GP Dr Whitfield said to me today 30.8.01 that she will be sending you a letter on Tuesday 4 September to explain that I couldn't appeal until now because of my breakdowns."
[16]On 21 September 2001 Mr Cooper wrote to the Employment Appeal Tribunal to say that Cooper Cleaning UK Ltd had gone into Administrative Receivership on 13 July 2001 and had no assets. He opposed any extension of time being granted to Mrs Davies.[17]On 15 October Mrs Davies made further submissions and she added that she now had osteoarthritis and, indeed, cancer. The matter then went to the Registrar and on 26 October 2001 the Registrar made her Order. It concluded as follows:
"IT IS CONSIDERED that whilst we sincerely sympathise with the trauma and illness the Appellant may have suffered as outlined in her submissions, her illness did not prevent her from making an application to the Employment Tribunal and therefore should not have prevented her lodging a notice of appeal."
And then there is a reference to the well known case of Abdelghafar and the Order continued:
"IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down"
And then, there is a reference to the rule and it concludes:
"AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused."
[18]On 8 November 2001 there were yet further submissions from Mrs Davies by way of an appeal from the Registrar's Order. She says, amongst other things:
"Also my GP Dr Grace Whitfield [and then, the Dr's address is given] is going to send you also a letter to explain why I could not appeal in time due to my nervous breakdowns. Also the Greenwich Law Centre Advisor Barry Mills should have appealed on my behalf but once again he let me down."
[19]On 4 December 2001 she wrote a letter to the Registrar at the EAT saying, inter alia:
"I don't believe the injustice I was done at work and at Court and also being turned down by you at the EAT to say 2 nervous breakdowns and several suicide attempts was not a good enough reason? for being late with my appeal. Like I have explained before Barry Mills was supposed to have been doing this and he even told my CPN Nurse he would appeal but now I know I was not represented properly. That's why Barry Mills of Greenwich Law Centre didn't appeal for me. He has told me sorry, but I am afraid 'sorry' isn't good enough."
[20]On 30 December 2001 Mrs Davies added yet further:
"I have already stated I should have been represented by Mr Barry Mills at my original hearing on 24 October 2000."
And, a little later:
"He promised my CPN Nurse Alison Van Carr from Meridian Mental Health Centre that he would appeal straightaway, but once again he let me down."
[21]On 13 February 2002 Mrs Davies wrote a letter to me direct reiterating that Mr Mills had, in her view, let her down. That is all I need of the chronology.[22]The matter first came before me on 21 February 2002. Miss Heal had come in to help Mrs Davies under the ELAAS Scheme and, before I come to the position as it looks today, I must mention some factors that seemed to be relevant as at the hearing on 21 February 2002.[23]First of all, one notices that the delay in lodging the Notice of Appeal from 1 November 2000 to 24 August 2001 is massive and it calls, therefore, for a full and cogent explanation and a pretty compelling explanation by way of an excuse for that delay.[24]Secondly, only two possible explanations emerge out of the chronology and the very prolix papers put before me, namely ill-health on the one hand, chiefly mental but also physical and, secondly, that Mr Mills had promised to deal with the matter and had failed adequately to do so.[25]Looking at those two separately, first looking at ill-health, it is quite plain that Mrs Davies was able to address matters by 24 August 2001. She then wrote a 113 page letter on or about that time. That she has remained able thereafter to address matters is plain from her later submissions of 30 August, 15 October, 8 November, 4 December, 30 December, all of 2001. It was of course possible, though, that there had been some earlier period, but one after October 2000, during which she had been unable to do herself justice because of her medical state. She was, it was said, on medication but I felt unable to assume on 21 February 2002, simply from that fact alone, that she was unable to any relevant degree to attend to matters and it was indicated that there was no cognitive impairment and that she suffered in a relevant degree only if the medication failed to work and, of course, there was no evidence that it was failing to work.[26]There was no obvious turning point before which she could fairly be regarded as having been, on the material before me on 21 February 2002, unable adequately to deal with her own affairs. And, after all, relatively little is required of a Notice of Appeal and she did ultimately compose one for herself. Also, it was notable that despite mention more than once of the imminence of a letter to be supplied by her GP as to her medical condition, nothing had been received and, indeed, apart from the indications I have interpolated in the course of the chronology, there was very little said, from any informed independent professional, on the subject of her mental health at all. Whilst I was willing to accept that Mrs Davies had been depressed to the point of being suicidal, that she had been in pain and had suffered from osteoarthritis and even cancer, there was, at that earlier time, 21 February, no clear medical and qualified evidence to support the medical grounds which could be regarded as sufficient to explain the delay throughout the long period from 1 December 2000 to 24 August 2001. So, as at February, there were real doubts about how much weight could be put on the medical ground.[27]As to the alternative ground then presented, Mr Mills' failure, there was nothing in evidence from Mr Mills. It could have been said that he was a reluctant witness, but there was nothing to indicate that he had been approached to give evidence and had refused to depose and there was nothing visible to me that seemed to request him to give evidence and nothing from him declining to do so.[28]There was a letter of 1 March 2001 that was shown to me indicating Mr Mills was then trying to help her but nothing that really added materially to the nature of the appeal. It was plain from the correspondence, though, that Mrs Davies had known, for a little while, "a few weeks before" 30 August 2001, that no appeal had been lodged by Mr Mills on her behalf.[29]As at the hearing on 21 February 2002 Mrs Davies wished the case to be decided there and then. Miss Heal, by contrast, was very alive to the risk that, considered only upon the material then available, which, of course, was much the same as, if not identical to, the material that had been available to the Registrar, the appeal might very well fail and, indeed, could be regarded as more likely then to fail than to succeed. Miss Heal was also alive to the thought that it could well be that, given further time, better evidence could become available to amplify and sustain the two grounds on which Mrs Davies was relying, the medical side and the dealings with Mr Mills. Accordingly, initially, I think, against Mrs Davies' wishes, but, ultimately, on Miss Heal's application, the case was adjourned and it therefore returns to me today.[30]On the medical side there is now a letter from Mrs Davies' general practitioner of 7 March 2002. It says, amongst other things, that:
"Mrs Davies has a history of depression recurring over many years but the loss of her job had a profound effect on her and caused a marked deterioration in her mood. A little later, it says: "
She appeared to the Employment Tribunal in October 2001 and was devastated when her appeal was turned down. She felt that for her employers to sack her while she was off ill was very unjust and also she felt that she had not been properly represented at the hearing. This result made her very angry and for a while she refused to have anything to do with the services that were supporting her. At this time her mood became even lower and I was alarmed by the fact that she was making threats of self harm and she was seen at home by a consultant psychiatrist just before Christmas. Throughout this time Mrs Davies had remained very angry and in emotional turmoil which made it very difficult for her to organise herself to go through the steps necessary to appeal against the Tribunal's decision within the normal time allocated. She has continued to have strong suicidal ideation and her physical health has also deteriorated. She has lost a lot of weight over the last two years and the persisting problems with her back and neck significantly restrict her mobility and it means that she spends most of her time indoors. She feels let down by the agencies that have tried to help her and feels unable to trust any of the statutory services that are there to support her. She refuses to have any more specialist input to try and improve her physical problems. This reflects her low mental state. I hope this gives a picture of how unwell this woman has been and why she was incapable of following the normal guidelines with regard to the appeal procedure. Her ongoing mental and physical health problems still cause great concern."[31]That goes a good way to paint a picture of a person who, whilst ultimately able to compose a hugely discursive letter which could be taken to be a Notice of Appeal, was not on medical grounds a person capable of following normal procedures within normal time limits.[32]As for the Mr Mills' side, there are three significant sources of information added since the last hearing and added, therefore, of course, since the Registrar's judgment. First of all, there is a Witness Statement from Mrs Davies herself. She says:
"I received the decision of the Employment Tribunal on 25 October at the Tribunal itself. I immediately became hysterical. Mr Barry Mills, my representative said, 'Calm down, I will appeal'. I quickly became extremely ill and attempted suicide later on 25 October 2000. From that time on, my psychiatric state was serious and with hindsight I do not believe that I was able to conduct litigation. I was certainly not able to follow the process of an appeal."
[33]So, on that evidence, she understood there was to be an appeal to be framed by Mr Mills. Then I have, as a second added source on this subject, some apparent attendance notes taken by the Greenwich Community Law Centre. These show that Mrs Davies was very unhappy about the Employment Tribunal Decision on the very day after the hearing concluded. They show that she was then told that the Law Centre would look in detail at the Decision once the written reasons were received. They show that on 27 October 2000 Mrs Davies told the Law Centre that she wanted to appeal. They show that only on 12 December 2000, the day before the 42 days expired, the Law Centre wrote to Mrs Davies (and presumably, therefore, it would have been received not earlier than the very last 42 nd day) to advise her that Counsel had orally advised that there was no ground for an appeal. Then they show that Mrs Davies on 8 January 2001 and 30 January 2001 nonetheless indicated that she wished still to appeal. There might be a contest about this, certainly in Mrs Davies' mind, but that is what the notes show and they show that on 30 January 2001 the Centre advised her that she could not appeal without grounds and, in context, it was clear that they were saying that there were no grounds and that, therefore, if she could not appeal without stating grounds, she could not therefore appeal at all. The Law Centre has written a letter and it says:
"With regard to your recent fax: No appeal was made against the Tribunal decision as we took Counsel's opinion and were advised that there were no grounds of appeal. Janet Davies was informed of this decision on 12.12. 2000."
[34]There is no doubt that the Law Centre knew that Mrs Davies had a long-standing medical history of depression or mental health problems because Mr Mills so writes on 1 March 2001. In the circumstances, for the legal advisers, dealing with a client with mental health problems, and who had given a very clear indication that she wished to appeal, to advise her of the Counsel's advice that there was no ground for her to appeal only on the last of the available days, does seem to me to put the matter into what one might call an exceptional category. If a person in good ordinary mental health advises in good time that he or she wishes to appeal despite possible legal advice indicating that the appeal would not be successful, such a person in good mental health can go forward and say either "draw me a simple holding Notice of Appeal for later possible refinement but get it in in time" or, if his or her legal advisers refuse to do that, such a person in good mental health can either go to other legal advisers or go ahead and frame something himself or herself and, if all that is done in good time, then a timely Notice of Appeal could emerge. But here Mrs Davies was not in ordinary good mental health. If she learned, as she did, of Counsel's adverse advice only on the last of the 42 days, the steps normally open to a person in good health were not truly open to her. It would be ludicrous to expect her herself to have framed a Notice of Appeal on the very last day in the mental state in which she would by then have been in, and, equally, too much to expect her to find other solicitors or advisers in the course of the day to do something on her behalf.[35]Moreover, the later advice that she could not appeal without grounds and, in effect, that she had no grounds was, again, advice likely to lead her not to seek to lodge a Notice of Appeal.[36]It is, of course, as Miss Heal recognises, common for shortcomings of a legal adviser to be visited on the client and that is just where the client is in a mental state such as to be fairly able to appraise the actions or inactions of the adviser and able to instruct or disinstruct accordingly. But here it cannot be thought, given the medical indications that have been supplied, that Mrs Davies was, at any material time, in such a position.[37]It seems to me that her mental state, coupled with the advice or lack of it or the action or inaction on the part of the legal advisers, puts her in an altogether exceptional category. I feel able, without departing from the guidelines in Abdelghafar and in the later case, Aziz v Bethnal Green, to set aside, and do set aside, the Registrar's Order of 26 October 2001 and I extend time for the reception of a Notice of Appeal till 24 August 2001, the day it was received. I thus validate the Notice of Appeal.[38]Miss Heal has usefully prepared an amended Notice of Appeal, reducing the grounds considerably and concentrating them. She applies for leave so to amend and I give leave to amend to the form of amended grounds of appeal that were lodged here at the EAT on 17 April 2002. But I do need to add some things. First of all, I would not want Mrs Davies to think that she is now on her way, necessarily, to a worthwhile victory against Cooper Cleaning UK Ltd. Two points need to be made.[39]First of all, in validating the Notice of Appeal I have paid little or no weight, or attached little or no weight, to the merits of the prospective underlying appeal. It is right that at this stage I need not or should not pay weight to those merits. My extending time for the Notice of Appeal does not indicate that the Notice of Appeal is ultimately likely to succeed and I would not want it thought that, by extending time, that represents any view that there is here at base a potentially successful Notice of Appeal. I have not so decided.[40]Secondly, Cooper Cleaning UK Ltd is in Administrative Receivership. Whilst that does not necessarily indicate that the company has no assets, Mr Cooper has said so and, certainly, being in Administrative Receivership is hardly the hallmark of a company likely to be able to pay its debts in full.[41]It will be well worth Mrs Davies or her advisers seeking, as best they can, to find out what the position is as to Cooper Cleaning UK's assets before taking the matter further. Equally, they ought to investigate how far, if at all, if it transpires Cooper Cleaning UK Ltd has no assets, they will instead have recourse against some other body such as a Government department. These are matters that need to be considered. I suppose it could be considered, even if Cooper Cleaning UK Ltd has no assets and that the Government would not pick up the tab, that nonetheless attempts might be made to recover against some individual such as Mr Cooper but that is, of course, fraught with difficulty, expense and delay. Given her relative mental fragility I would not wish Mrs Davies to have high hopes only to have them dashed and it would be very well, therefore, for her carefully to consider whether the appeal is truly worth pursuing. But that is for the future.[42]I give leave, as I have indicated, for Miss Heal to amend the Notice of Appeal in the way that I have already touched on. It is the amended Notice of Appeal alone that will now go to a preliminary hearing at the Employment Appeal Tribunal. If, as I would hope, Mrs Davies first considers how fruitful it is likely to be to go forward and then considers, on advice, that it will or may be fruitful, I do not leave the case without thanking Miss Heal and the ELAAS administrators. Without Miss Heal's help and the help of the ELAAS scheme Mrs Davies would undoubtedly have foundered. I am grateful and, as I would hope, Mrs Davies is, for the considerable assistance given to the administration of justice not only by ELAAS generally but, in this case, by Miss Heal. Having said that, the Order that I make is plain enough.