J P MCDOUGALL & COMPANY LTD T/A ICI DULUX DECORATOR CENTRES AND MCDOUGALL ROSE v MR J NICHOLAS [2002] UKEAT 1173_01_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1173_01_0105Case No Appeal No. PA/1173/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
J P MCDOUGALL & COMPANY LTD T/A ICI DULUX DECORATOR CENTRES AND MCDOUGALL ROSEAPPELLANTMR J NICHOLASRESPONDENT
Before
Mr Justice LindsayDate 1 May 2002
[1]APPEARANCES For the Appellants Mr Mark Shrives (Solicitor) Messrs Hammond Suddards Edge Solicitors 2 Park Lane Leeds LS3 1ES For the Respondent No appearance or representation by or on behalf of the Respondent MR JUSTICE LINDSAY (PRESIDENT ) I have before me an appeal by J P McDougall & Company Ltd, trading as ICI Dulux Decorator Centres and McDougall Rose against Mr J Nicholas. It will be convenient simply to refer to them as ICI Dulux. ICI Dulux appeal against the Registrar's Order declining to extend time to the late reception of a Notice of Appeal. Today, Mr Shrives of Hammond Suddards Edge appears for ICI Dulux; Hammond Suddards Edge have acted throughout for ICI Dulux.[2]On the other side, because of a confusion, the Community Law Clinic, who have previously acted and are still acting for Mr Nicholas, do not appear and have asked for an adjournment. The confusion arises because Mr Nicholas, as well as ICI Dulux, have lodged a Notice of Appeal in this matter. Community Law Clinic, acting for Mr Nicholas, now wish to withdraw Mr Nicholas' appeal. For some reason they had thought that today's hearing related to Mr Nicholas' appeal. It does not; it relates to ICI Dulux's application in relation to the failure to be granted an extension of time. Exactly whose fault it is that Community Law Clinic were confused about the proper business of today, I have not gone into, nor, indeed, at the moment, do I have adequate material to establish whose fault it might be, but it does seem to me, to the extent to which I have been able to understand the confusion, that it does not provide a good reason for Community Law Clinic Solicitors having an adjournment of today's proceedings, Mr Shrives for ICI Dulux having attended with a Skeleton Argument sent in advance, and being thoroughly willing and able to go ahead. Indeed, Mr Shrives indicates that he would have chosen to resist an adjournment had it been ventilated on Mr Nicholas' behalf. All in all, I therefore proceed, in the absence of representation on the Nicholas side, although I think I can take it that they would wish to oppose the relief which ICI Dulux seeks.[3]The background to the matter is that on 6 April 2000, ICI Dulux as employer were the Respondent to an IT1 from Mr Nicholas in which Mr Nicholas claimed that he had suffered both unfair dismissal and racial discrimination. Mr Nicholas, I should say, is a Filipino, or of Filipino extraction.[4]On 8 June 2000, the Respondent Employer, ICI Dulux put in its IT3; it was represented by Hammond Suddards. Amongst other points, it took the point that allegations prior to 8 December 1999 were out of time. Although both the IT1 and the IT3 were relatively short, they led to a not inconsiderable hearing of some six days at the Tribunal, plus a day's consideration by the Tribunal in Chambers and those days were spread between 21 September 2000 and 25 May 2001. Mr Nicholas was represented by Counsel; ICI Dulux by Mr Shrives of Hammond Suddards.[5]On 27 June of last year, the Decision was sent to the parties. It was the Decision of the Tribunal at London Central under the Chairmanship of Mr G P Sigsworth. It was unanimous and it was:
"(i) The Applicant's claim for race discrimination is out of time, but it is just and equitable to extend time and allow his claim to be considered by the Tribunal. (ii) The Respondent unlawfully discriminated against the Applicant on the grounds of his race. (iii) The Applicant was not constructively dismissed or unfairly dismissed."
One can see that there was material for both sides to appeal, should they so wish.[6]On 7 August, the Employment Appeal Tribunal wrote a letter to Mr Shrives at Hammond Suddards headed "Nicholas -v- ICI Dulux" and it said:
"We have received a Notice of Appeal in the above matter. You are the Respondent to the appeal and we will write to you shortly enclosing a sealed copy of the Notice of Appeal and to let you know how the appeal will proceed."
And a little later, it said: "Perry Moore will be dealing with this appeal" and can be contacted on such and such a telephone number. That was 7 August and it was sent by post.[7]On the same day, 7 August, Hammond Suddards Edge, acting for Dulux, sent a Notice of Appeal in this matter to the Employment Tribunal. It was accompanied by a covering letter that is addressed to the Employment Tribunals, 19-29 Woburn Place, London, and it says:
"Further to the Tribunal's Decision sent to the parties on 27 June 2001" which is the correct date " please find enclosed our Notice of Appeal in respect of the above matter."
It should, of course, have been sent to the Employment Appeal Tribunal and not Woburn Place, but at Audit House. In response to the telephone request, made by Hammond Suddards to the Employment Tribunal, the Employment Tribunal confirmed by telephone that it had received the correspondence and Notice of Appeal sent to it on 7 August 2001 by Hammond Suddards.[8]On 8 August, the forty two day period allowed for the lodging of a timely Notice of Appeal, running from 27 June, expired, and on that day, also, Hammond Suddards received the letter of 7 August which the Employment Appeal Tribunal had sent the previous day. The reason why the Employment Appeal Tribunal had sent that letter of 7 August was that Mr Nicholas' side had coincidentally also lodged a Notice of Appeal and the letter of 7 August from the Employment Appeal Tribunal was referring to the Notice of Appeal from Mr Nicholas that they had received.[9]On 9 August Hammond Suddards, having received the EAT's letter of 7 August, wrote to invite the Employment Appeal Tribunal to indicate in fact that they were confused by referring to Hammond Suddards as acting for the Respondent. At this point Hammond Suddards did not know that Mr Nicholas had lodged a Notice of Appeal and they took it that the EAT's letter of 7 August was simply mistaken in referring to Hammond Suddards as acting for the Respondent. In their letter of 9 August, they say:
"Thank you for your letter of 7 August 2001 acknowledging safe receipt of the Notice of Appeal. In the letter, however, you indicated that we are the Respondent to the appeal. Subject to the possibility that Mr Nicholas has himself lodged a separate Notice of Appeal of which we are not aware….."
Pausing there, it was, of course, exactly the case "…….I suspect that this is a typographical error as we lodged the appeal on behalf of J P McDougal & Co Limited and are therefore strictly the Appellant. We would be grateful if you could clarify this matter."[10]That letter was received by Mr Perry Moore, to whom it was addressed at the Employment Appeal Tribunal, and he tells me that on 10 August he telephoned Mr Shrives. Mr Moore indicates to me that he phoned Mr Shrives on 10 August 2001 and told Mr Shrives that he (Mr Shrives) was representing the Respondent in the appeal. Mr Shrives does not contest that Mr Moore phoned him to that effect but he says that he has no recollection of it and he adds that his later conduct, as we shall see, was inconsistent with his having been told on 10 August that the earlier letter of the Employment Appeal Tribunal had referred correctly to Hammond Suddards acting for a Respondent. It is part of the puzzles in the case.[11]On 22 August Hammond Suddards asked for confirmation, they taking the view that they had had no answer to their letter of 9 August. They asked for confirmation that it was, indeed, the case that they were acting for the Appellant rather than the Respondent in the matter. In their letter of 22 August, they said:
"We refer to our letter dated 9 August 2001 in response to your letter to us of 7 August 2001. We would be grateful to hear from you with clarification that we are the Appellant in these proceedings. We enclose a further copy of our letter of 9 August 2001 and look forward to hearing from you"
It would have been a strange letter for Mr Shrives to send if he had been telephoned by Mr Moore on 10 August, but on the other hand, it could be that Mr Moore's conversation on the 10 th was not with Mr Shrives direct but, perhaps, with a secretary, and that somehow perhaps something got lost in transmission.[12]On 23 August Mr Shrives says that a telephone call was made to the Employment Appeal Tribunal to enquire about the status of the Notice of Appeal and that Mr Moore clarified that the earlier letter, that is to say that of 7 August, did indeed relate to a Notice of Appeal from Mr Nicholas, but he, Mr Moore, took the view that someone else was dealing with the matter and that he would make enquiries and revert to Hammond Suddards later. If, at that stage, Hammond Suddards had glanced at their earlier communication, as they thought it must have been, sending a Notice of Appeal to the EAT, they would have seen that it had not been addressed to the Employment Appeal Tribunal but to the Employment Tribunal, and not at Audit House but at Woburn Place. That investigation seems not to have been conducted.[13]The next communication is on 30 August 2001 when Mr Perry Moore of the EAT telephoned Hammond Suddards and said that no record existed at the EAT of an appellant's Notice of Appeal, meaning an appeal from ICI Dulux. The response on Hammond Suddards' part was prompt and on 30 August a Notice of Appeal was sent off to the EAT by fax, some twenty three days late and it, of course, identifies Hammond Suddards as acting for ICI Dulux. An extension of time for its reception late was also sought. The appeal is solely against the finding of the Tribunal that, although Mr Nicholas' IT1 was out of time, it had been just and equitable to extend time as to the complaints which Mr Nicholas was making.[14]On 1 October 2001 Mr Nicholas' solicitors asked for an extension of time in responding to the Notice of Appeal in order that they might secure public funding and on 5 October of last year time was extended to the Nicholas side, ICI Dulux not having objected to the extension. Then the matter came before the Registrar on 16 November 2001. The Registrar refused an extension of time to ICI Dulux and on 23 November of last year, Hammond Suddards Edge, acting for ICI Dulux, appealed against the Registrar's refusal. The letter of 23 November says, amongst other things, under the heading "Facts":
"On 7 August 2001, within the relevant time limit for lodging this appeal, the solicitor with the conduct of this matter instructed his secretary to fax the Notice of Appeal (which was headed up as "
In the Employment Appeal Tribunal") " to the tribunal" and to telephone them to make sure that they had received it. Whilst it was the solicitor's intention that the "tribunal" in question was the Employment Appeal Tribunal, the secretary misunderstood and faxed the Notice of Appeal to the Tribunal whose decision was being appealed. She then telephoned as instructed but rang the Employment Tribunal to whom she had faxed the Notice rather than the Employment Appeal Tribunal. The Employment Tribunal of course confirmed receipt. Unfortunately, the Tribunal did not question why we had sent the Notice of Appeal to them (although we accept that the Tribunal was not under any obligation to question us, nor do we seem to suggest that there was any failing on that Tribunal's part in failing to so question us.)"[15]Just pausing there, it is quite common for Notices of Appeal to be sent to the Employment Tribunal, without having first been sent to the Employment Appeal Tribunal, because quite often it is relevant to the Employment Tribunal's further considerations, for example, as to remedies or, sometimes, in relation to a review, that they should know that an appeal has been lodged at the Employment Appeal Tribunal. There is nothing about a Notice of Appeal's receipt at the Employment Tribunal that instantly should signal to the Employment Tribunal that a mistake has been made, and certainly Mr Shrives does not say that that is the case.[16]Later in the letter, Hammond Suddards say:
"The error in service arose solely as a result of a misunderstanding between the solicitor with the conduct of this matter and his secretary and a series of events which meant that the error could not reasonably have been discovered prior to 30 August 2001, when it was immediately rectified by service of the Notice of Appeal."
That submission seems to me to overlook that a glance at the accompanying letter that accompanied the Notice of Appeal would have indicated that it had been sent to the wrong address. Mr Shrives has addressed me with complete candour; there is no attempt here on Hammond Suddards' part to describe this matter as other than one of error on their part, an error of the kind which that letter just indicated, namely a misunderstanding between the solicitor, Mr Shrives, who used the term "the tribunal" and the secretary who acted on that instruction and thought that meant the Employment Tribunal, when Mr Shrives had, of course, had in mind the Employment Appeal Tribunal. Mr Shrives has put in a comprehensive argument that this is an appropriate case for an extension of time.[17]A number of factors need to be borne in mind. First of all the forty two period is a relatively generous one. Secondly, those who leave things to the last run a risk that if any error is made, there will no time or opportunity to correct it. By faxing the Notice of Appeal as they thought they did, to the right address as late as 7 August - the day before the expiry - the Appellant's solicitors ran that risk. There is no explanation here of why a Notice of Appeal could not have been embarked upon and completed earlier. In error, Hammond Suddards then sent the Notice of Appeal to the wrong address and to the wrong body, namely not to the Employment Appeal Tribunal at Audit House, but to the Employment Tribunal at Woburn Place. It has to be faced up to - and Mr Shrives accepts this - that the secretary concerned was plainly inadequately instructed and, it has to be said, inadequately supervised. No fault can be attributed to the Employment Appeal Tribunal at that stage.[18]Mr Moore's letter of 7 August describing ICI Dulux as Respondent was entirely correct. He had no means of knowing of any risk of confusion on the grounds that by error, Hammond Suddards Edge had sent a Notice of Appeal to the wrong recipient at the wrong address on the very same day, nor can the Employment Tribunal be blamed. It, by acknowledging on the telephone that it had received the Notice of Appeal, was merely acknowledging receipt of what it had indeed received. One might have thought that before telephoning the Employment Tribunal to confirm receipt, a glance would have been paid to the accompanying letter that accompanied the Notice of Appeal which, as I mentioned, would have indicated that the Notice of Appeal had been sent to the Employment Tribunal and not to the EAT, but the error that was made earlier persisted.[19]The merits of the underlying appeal in cases such as this play no great part in the decision as to whether time should be extended or not, but here the only appeal, as I have indicated, is as to the finding that the Tribunal is satisfied that it was just and equitable to extend time in Mr Nicholas' case. The discretion that is afforded by the Act as to just and equitable extensions of time is a very broad one; it is unfettered beyond the fact that something just and equitable has to be shown and that, obviously, the discretion has to be exercised judicially. But, where one has such a broad discretion, it does make life rather difficult for the Appellant. He has to show that either the Tribunal took into account something which it ought not to have done, or left out of account that which it should have considered, or that otherwise there was a plain error of law in its approach.[20]What the Tribunal said in this case on that subject was this; it is to be found in their paragraph 6(iii) where they say this:
"However, the Tribunal concludes that it is just and equitable to extend time to allow him to present his race discrimination claim to the Tribunal, for the following reasons: (a) The Respondent can point to no prejudice as a result of the five-week delay, which in itself is a short period in the context of this claim. (b) On the other hand, there would be substantial prejudice to the Applicant, if his claim was struck out, as his constructive dismissal claim does not succeed (see below), and therefore he would be left without a cause of action to pursue to a remedy. (c) Although the Applicant had a solicitor from at least 3 February 2000 advising him, and had seen his doctor, and also he gave no reasons for his delay, and as at 15 February was minded to file a court action, nevertheless he had been ill, and there is a suggestion, although no medical evidence, that he continued to be unwell for a time through this period. (d) We are entitled to take into account the fact that the Applicant has a good case on the merits for racial harassment, and we take that factor very much into account. It seems to us that it would be grossly unjust to the Applicant to refuse to allow him to pursue a claim that is only five weeks out of time, when the Respondent has been guilty of unlawful racial harassment, and would therefore escape liability for it. There was a near total non-observance of the Respondent's equal opportunities policy."
I should say that, as is not altogether uncommon, the decision on whether the Tribunal should or should not regard it as just and equitable to extend time was not taken here as a separate preliminary point but as part of the total hearing of all facts. It could be that different considerations come into play when that is the case than when the just and equitable issue is dealt with on only partial facts and as a preliminary matter.[21]The Notice of Appeal makes a sustained attack, as does Mr Shrives' Skeleton Argument, on that paragraph cited from the Decision of the Tribunal, that unless one can say that the underlying appeal will very probably succeed or very probably fail, the merits of the underlying appeal are, on authority, to have but a little part in the decision as to the rightness or wrongness of an extension of time for the Notice of Appeal. I do not see this as a case in which one can say that the Notice of Appeal which underlies today's case will very probably succeed. I certainly do not say that it will very probably fail. On that basis, it seems to me, its merits are properly to pay only a very small part.[22]An argument is put, but not pressed, by Mr Shrives under the Human Rights Act . Of course, the Appellant Company is not human, but, leaving that aside, the appeal period of forty two days is relatively generous and there has been a fair trial on the merits already; nothing is said that suggests the trial was unfair. In such circumstances, there is nothing in the Human Rights Act , even where it applies, to deny force to not-unreasonable statutory time-bars, and I see the Human Rights Act as not assisting ICI Dulux in this case.[23]Mr Shrives has taken me to two relatively elderly cases - Falconis Ltd -v-Alorati , heard at the Employment Appeal Tribunal before Mr Justice Talbot on 19 June 1980, and Ennos Packaging Ltd -v- McManus , heard before the Employment Appeal Tribunal under Mr Justice Slynn on 7 January 1980. Both of them were dealing with relatively short periods of delay - five days in one case, one working day in the other. They both, of course, long antedate the Abdelghafar case which is recognised now as giving the definitive guidance in this part of the law and, even more so, antedate the Court of Appeal's comments on the Abdelghafar case that emerged from Aziz -v- Bethnal Green in the Court of Appeal. It is interesting that in Ennos Packaging , the case before Mr Justice Slynn, where the Registrar had extended time in one working day late case, he regarded it as a borderline case and not one such as properly to set a precedent. It is rare that the exercise of discretions in one case greatly assist the exercise of discretions in others and I do not feel, in view of the difference in the facts and in view also of the consideration that both of those cases antedate the modern practice, that I can get any useful guidance from them.[24]Mr Shrives says - and one can see the force of this - that it would be hard on the client, ICI Dulux, if what he candidly accepts was an error in the solicitor's arrangements, led to unwelcome consequences being visited upon the client, especially if those consequences were not such as could be undone by compensation. He says that compensation from solicitor to client would not here undo the harm done to ICI Dulux. There is, he urges, a finding of racial discrimination against ICI Dulux which a successful appeal would undo. In a sense that is true because if the jurisdictional complaint succeeded, of course, the finding of racial discrimination would be swept away. But in terms of stigma it is hard to see, even if the appeal succeeded on the technical ground that time should not have been extended, that any stigma would have been washed away and it is to be borne in mind that the Tribunal held that the Respondent, ICI Dulux, had been guilty of unlawful racial harassment and that there had been a near total non-observance of the Respondent's equal opportunities policy. In terms of stigma, as opposed to strict legal blame, it seems to me that would persist even if the jurisdictional complaint succeeded.[25]Mr Shrives says that it would be difficult to quantify in cash terms ICI Dulux's loss and I see the force of that but it seems to me that the compensation would not be so difficult a calculation as to be impossible. I do not see this as a case where it is manifest that a claim by a client against a solicitor could not substantially undo whatever harm was caused by an extension of time being refused.[26]In an admirable and ingenious argument Mr Shrives then argues that one has to reflect that in the Abdelghafar itself the Employment Appeal Tribunal eventually did extend time by reference to the failure of the Tribunal below to have considered, or to have considered adequately, the State Immunity Act which granted an inescapable exemption. He, Mr Shrives, argues that where a point of jurisdiction is being argued or is sought to be argued on appeal, there is no real difference between the case where the Tribunal below has not considered the point of jurisdiction at all, and the case where it has been considered but where, after reasoned argument, they got the conclusion wrong. In other words, he is seeking to devise a category, namely appeals as to jurisdiction, in which different tests apply when one comes to look at whether time should be extended. I do not accept that argument. It seems to me that the test uniformly applies in all cases and that there is a vast difference between a case where the jurisdiction is one that admits of no exception and the case such as the one before me, where the jurisdictional test has an exception, where the exception is considered and where the exception has been used by the Tribunal below.[27]So far as concerns argument on whether the reasons given for the Tribunal's regarding this as a case where it was just and equitable to extend time, Mr Shrives draws my attention to a case at the Employment Appeal Tribunal under Mr Justice Charles, Ministry of Defence -v- Mrs C Bloomfield-Evans where, at page 24 - 42 headed "Cogent point (vi)" there is a discussion as to relative prejudice and in which the EAT, under Mr Justice Charles, described the point as one as being neutral and as underlying every exercise of discretion to extend time where an applicant issues proceedings out of time. There it would seem that the Tribunal below had regarded this as a cogent point and the EAT in the Ministry of Defence case was saying that, so far from being cogent it was, in fact, a neutral point, and Mr Shrives, going back to the passage already cited from paragraph 6(iii)(a) of the Tribunal's Decision, says that, quite plainly, treating that sub-paragraph (a) as a cogent point in favour of an extension of time was in error of law. To remind myself, (a) says: (a) The Respondent can point to no prejudice as a result of the five-week delay, which in itself is a short period in the context of this claim."[28]But I do not see that citation as being in any way incorrect. What the Tribunal was there saying was that not that there was no prejudice at all to the Respondent if time was extended to the Applicant, because, manifestly, the result of an extension of time would be that ICI Dulux had to meet a claim from Mr Nicholas that otherwise it need not bother with. That was a point so blindingly obvious it hardly needed to be stated. Rather the Tribunal was saying that there was no prejudice that could be pointed to "as a result of the five-week delay "; in other words, it was not one of those special cases where even a small delay had caused ascertainable prejudice such as, for example, a case of a witness disappearing or dying, or some consideration such as that, in which one can very closely tie in prejudice with a particular time period.[29]I hope I have dealt, at any rate, with the leading arguments that Mr Shrives has put in front of me. I do not find that, looking at them together, they furnish a good excuse for the delay, nor a good reason for extending time in this particular case. Accordingly, although with some regret, because Mr Shrives has been so very candid in accepting that there was an error in the solicitor's office and has done so with an appealing candour that is far from common, I must, with regret, dismiss the appeal.