MISS M B MUSTOFA v NEWHAM HEALTHCARE NHS TRUST [2002] UKEAT 1260_01_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1260_01_2102Case No Appeal No. PA/1260/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M B MUSTOFAAPPELLANTNEWHAM HEALTHCARE NHS TRUSTRESPONDENT
Before
Mr Justice LindsayDate 21 February 2002
[1]APPEARANCES For the Appellant MR JOE SYKES (of Counsel) Messrs Soorii Ayoola & Okri Solicitors 293 Plumstead High Street London SE18 1JX For the Respondent MR JEREMY LEWIS (of Counsel) Messrs Mills & Reeve Solicitors Francis House 112 Hills Road Cambridge CB2 1PH THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Miss M B Mustofa in the matter Mustofa v Newham Healthcare NHS Trust . Miss Mustofa appeals against the Registrar's refusal to extend time for the acceptance of a Notice of Appeal. Today, Miss Mustofa has appeared by Mr Sykes and Newham Healthcare NHS Trust by Mr Lewis. I have had skeleton arguments from both of them. Mr Lewis has also handed in a Respondent's summary and I have had additional authorities handed in.[2]Miss Mustofa collected a blank form IT1, presumably either from her advisers or from the Tribunal itself, on Friday 15 December 2000. 17 December was a Sunday and it was not until 18 December 2000 that an IT1 was received at the Employment Tribunal, for unfair dismissal, sex discrimination, race discrimination and victimisation. On the face of things, it was one day outside the statutory three month time limit. On 16 January 2001 Newham put in an IT3. They said that Miss Mustofa had been dismissed for capability. They took the point that her claim as to sex discrimination and unfair dismissal was out of time. They said that the victimisation claim was not within the Tribunal's jurisdiction and was in any event unparticularised, as also was the claim in race discrimination.[3]The matter went forward to a hearing at Stratford on 11 July 2001. Counsel (indeed, Mr Sykes) then appeared for Miss Mustofa. She attended and gave some oral evidence. She put in a witness statement dated 11 July 2001. It does not seem that there was any application for adjournment on the grounds of ill health. On 30 July the decision of that Tribunal, which was under the Chairmanship of Ms J M Laidler, was sent to the parties. It was a unanimous decision and it said:
"(i) The Applicant's claim for unfair dismissal is dismissed. The preliminary issue with regard to sex and race discrimination claims to proceed (as below). (ii) The Applicant to serve and file replies to the Respondents request for further and better particulars dated the 3 July on or before 25 July. (iii) The costs of the hearing on 23 April and today be reserved to the final determination of the primarily [primary] issues. (iv) This matter be adjourned to 21 September 2001."
The only matter firmly and clearly lost there and then was the claim in unfair dismissal. That, as I say, was sent to the parties on 30 July 2001. The 42 day period began from the sending out and therefore expired on the last moment of 9 September 2001. Nothing by way of a Notice of Appeal had been received by that expiry date.[4]On 17 September a Notice of Appeal settled by counsel (again Mr Sykes) was received at the Employment Appeal Tribunal. It is of a technical and procedural nature and, of course, it related only to what are said to be arguable points of law, because that is all, of course, that the Employment Appeal Tribunal can handle. It is not, therefore, the sort of case where full instructions on fact have to be taken from a client who is minded to appeal. All that needs to be considered is whether there is to be an appeal and, if so, on what points of law it can, without impropriety, be advanced. On 20 September 2001 the Employment Appeal Tribunal indicated to the prospective Appellant that the Notice of Appeal was out of time and that therefore an application for an extension of time was necessary.[5]On 21 September Miss Mustofa herself wrote to a Dr Zinkler at the Goodmayes Hospital in Essex. Amongst other things she said:
"I will appreciate if you could write on the report that in July 2001 and August 2001 I was suffering from depression [it is not entirely clear – it might be 'and'] and I was too ill to attend to the affairs. Now I have chest ……. [I am afraid the word is not properly copied] and I am having so much palpitations, my GP had referred me to the casualty."
What Dr Zinkler's views were as to Miss Mustofa's position in July and August 2001 we know not because no answer is put in evidence.[6]On 3 October 2001 Miss Mustofa's solicitors applied for an extension of time for the reception of the Notice of Appeal. They said:
"As to delay in filing, with reference to your letter 20 th September 2001, we apply for extension of time to file the Notice of Appeal on the ground that our client was too ill with severe depression in July, August and September 2001 to attend to her affairs. A medical certificate is a ground for adjournment ( Mr G Edwards v Department of Social Security, EAT, 8/7/97, Lawtel 2/2/97, copy attached ), and in our submission for accepting late service. In this case the Applicant provides medical reports fully covering the material period. In these unusual circumstances we apply for latitude to serve the Notice of Appeal late. It would be fair to allow the Notice of Appeal to be served late in these circumstances. When a party is simply too ill to instruct her representatives, it would preclude a fair trial of her appeal to apply strict time limits, by Article 6.1, Schedule 1, Human Rights Act 1998."
As is its custom, the Employment Appeal Tribunal, having received the extension of time application, took the views of the other side, here Newham. On 18 October 2001 Newham indicated that they opposed any extension. On 26 October Miss Mustofa's solicitors put in some further or final submissions. They said, inter alia :
"In these circumstances the appellant's claim that she was too ill to instruct us in July August and early September 2001 is supported. She might not have instructed us for some time later. She contacted us to progress the appeal in what appears to have been a brief period of sufficient health. "
I should say that the solicitors concerned are Philip Glah & Co, who had remained in the matter as the solicitors for a while.[7]In that state of things the matter went forward to the Registrar. On 16 November 2001 she made an Order that said inter alia :
"AND UPON CONSIDERATION of the fact that the appellant's representative has an expertise in employment law and is well aware of the importance of time limits and that these will be relaxed only in rare and exceptional cases where the EAT is satisfied that there is a full, honest and acceptable explanation of the reasons of the delay (AZIZ V BETHNAL GREEN CITY CHALLENGE COMPANY LTD) AND UPON CONSIDERATION of the fact that the applicant claims that ill health prevented her giving instructions to her solicitors but that all the documentation adduced postdates a letter of 20 th September 2001 from the EAT to the applicants solicitor indicating that the appeal was out of time and requesting reasons for late submission and shows no complaint by the applicant to her medical advisers during the relevant period IT IS CONSIDERED that whilst we sincerely sympathise with the trauma and illness the Appellant may have suffered, her illness did not prevent her from instructing solicitors and conducting litigation in the Employment Tribunal and therefore should not have prevented her lodging a notice of appeal in time AND UPON DUE CONSIDERATION of the fact that the Appellant has had access to legal advice throughout and therefore there can be no acceptable reason for not complying with the deadline AND UPON FURTHER CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS that "
Parties … are advised not to leave the service of a Notice of Appeal until the last few days of the 42 day period. If they do they run the risk of delay in the delivery of the post" 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 in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993" Therefore the extension of time was refused.[8]The important period to concentrate upon is from, let us say, 1 August 2001, which would be, normally speaking, the date when the decision of the Tribunal, sent to the parties on 30 July 2001, would have been received, and the very last moments of 9 September 2001 when the 42 days expired. The Appellant's solicitors have put in some medical indications, but they have a weakness, as it would seem, that they do not specifically relate to that crucial period in July, August and early September 2001. There is some medical evidence. It might be perhaps overstating it if describing it as evidence (in the sense that there is nothing sworn from an independent or qualified medical practitioner) but there are one or two letters and other matters that are in the papers. Thus it is that we have a letter from Dr S S Rafiq dated 19 September 2001. It refers to a letter from Philip Glah & Co of 25 July and also to a fax from, I take it, Mr Sykes' Chambers, on 17 September. Dr Rafiq indicates that she had known Miss Mustofa since 1997 and then says this:
"Minara [that is the appropriate forename] has been suffering from depression/anxiety since 1997. She was referred to the Psychiatrist in 1998; since then she is on anti depressant, on and off. Minara was seen by psychiatrist in March 2001 and was advised to take Paroxetine. Minara was last seen in surgery on 19.6.01 for eye infection. She has not seen me in July 01 or August 01, although she did come to collect her repeat medication paroxetine in July 01. Thank you and regards."
There is, as it seems to me, nothing there that suggests an inability to give adequate instructions for an appeal on a point of law in the period from 31 July 2001 till the close of 9 September 2001. It has to be remembered, of course, that she was able to attend and give evidence on 11 July.[9]There is some other medical evidence (again, nothing sworn to, but just a letter) that is dated 21 September. That seems to cover a period only of some two or three days or thereabouts, on either side perhaps, or at least, earlier than, I should say, 21 September and it therefore does not help in explaining the delay down to 9 September 2001. There is the indication from Miss Mustofa herself in the letter to Dr Zinkler, but that, as I mentioned earlier, seems not to have attracted any answer, or at least no answer that has been put in evidence. It is therefore unwise to put too much weight on what can only have been Miss Mustofa's assertions and wishes. There is a notice indicating attendance at the Accident and Emergency Department of Newham General Hospital on 22 September 2001 but that, too, gives no explanation of failure to give instructions in the crucial period.[10]It is notable, too, that there is no evidence whatsoever from Philip Glah & Co, Miss Mustofa's earlier solicitors, during the relevant period indicating in that period from, let us say, 1 August 2001 to 9 September 2001, pressing her for information, warning her that an appeal, if there was to be one, had to be within 42 days, seeking instructions as to matters to be raised, suggesting, perhaps, taking counsel's or other's advice, expressing concern on the absence of receipt of instructions or anything whatsoever on those lines. There is nothing, for example, even suggesting that it would be prudent for them, Philip Glah & Co, simply to put in a holding Notice of Appeal to hold the fort until she might be better and more fully able to give instructions. It does not appear either, in evidence properly-so-called, when counsel was instructed to draw up the Notice of Appeal.[11]I do not regard myself as having any sufficient material on which I could conclude that throughout the period 1 August 2001 till 10 September 2001, or even for any significant distance within that period, Miss Mustofa was, on medical grounds, not reasonably capable of giving instructions for the drawing up and presentation of a Notice of Appeal, or indeed of composing one and lodging it herself. I do not feel able to jump from the fact that she was taking medication over a period of years to a conclusion that she was not so reasonably capable.[12]Miss Mustofa's earlier solicitors, Philip Glah & Co, hardly strengthened her case by (in relation to a quite different aspect of the overall litigation) by their writing a letter on 3 October 2001 that begins by saying:
"We apply for a review of the decision of 6 September 2001 [a decision I have not referred to because it is not immediately within the range of this appeal] striking out the Originating Application on the grounds that the Applicant until now [that was 3 October] was too ill to instruct us."
A little later the letter says:
"The Applicant provides the particulars late as she was too ill with severe depression in July, August and September to attend to her affairs."
[13]Mr Sykes accepts that that is the case that is intended to be put, but that, as it seems to me, creates immense difficulties for the Appellant because it indicates either that Philip Glah & Co are exaggerating the illness (not necessarily intentionally, but perhaps on some form of instructions or misunderstanding of the medical position, but exaggerating the illness and the consequences of the illness which Miss Mustofa was suffering from) or, that when they lodged the Notice of Appeal, as they did on 17 September 2001, they had managed to do it without having to await instructions or clear instructions from Miss Mustofa. Mr Sykes then sought to avoid the difficulties that that creates by saying that there was a "window" of good health between 14 and 21 September 2001. That is totally unsupported by any medical evidence whatsoever. Mr Sykes criticises the notion that is mentioned in the Order of the Registrar that she was, after all, in the hands of advisers. He takes the point that if the advisers were not in fact instructed during the relevant period then the fact that they can be expected to know the law as to the 42 days carries no weight against her. It does seem to me that it is proper to take into account that throughout the period of the 42 days, and indeed at the hearing that began the matter, Miss Mustofa was in the hands of solicitors. I do not see that it was wrong of the Registrar to take that into account even if it had been proved that they had not been instructed until such and such a date, a matter which, as I mentioned, has not clearly emerged from the evidence. Mr Sykes says that it is quite plain that she suffered from depression, as it is put, 'on and off'. Depression on its own is not necessarily an indication of incapability of sufficiently coping with ones own affairs in order to put in a Notice of Appeal. In any case there is nothing to suggest, if there was an 'on and off' recurrence of depression, that she was, so to speak, 'on', that is to say, suffering, in the relevant period. That would be a matter that required medical evidence and, as I have commented upon already, that medical evidence is not to be found.[14]Mr Sykes then draws attention to what he describes as the merits of the underlying appeal. It is plain from both Abdelghafar in the Court of Appeal and Aziz v Bethnal Green in the same court that a study of the merits of the underlying appeal plays only a small part in the sort of case that is now in front of me. If it was manifest that the underlying appeal was bound to succeed or equally manifest that it was bound to fail, that, as it seems to me, would be a highly material consideration, but that, as it seems to me, is not the case. The law on the subject of how far and what circumstances Sunday can be overlooked as a day in the counting is not altogether clear and it seems to me that I cannot characterise the underlying appeal as either bound to succeed or bound to fail. It seems to me the merits of the underlying appeal have very little play in the matter immediately before me.[15]All in all, it seems to be that I cannot regard myself as having had laid in front of me a full and acceptable explanation that enables me to treat Miss Mustofa's case as within that range of exceptions or exceptional circumstances in which additional time beyond the 42 days can be given for the lodging of a Notice of Appeal. Accordingly, I dismiss the appeal. Mr Lewis Sir, I do have an application for costs. Lindsay J Yes? Mr Lewis I refer to Rule 34 in the EAT Rules – "… where unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs …". I say this, first of all that this is a clear case of unreasonable delay in bringing the proceedings. That of itself has caused the Respondent to incur costs and indeed, as I have indicated, they are ……………………………[inaudible] public money to meet those costs. It comes against the background to ………………………in these proceedings……………………………………………………..for the unlawful ……………………… about the particulars made in this case. I ally that with the fact that although the weaknesses in the evidence have been drawn to the attention of the Applicant from an early stage, they were not thought to be …………………………….. in any event. They were drawn to the attention of the letter from the Respondent's solicitors in October and indeed as a result of the Registrar's decision and despite that, evidence has not been put in which comes anywhere near providing the explanation required in accordance with Abdelghafar . As a result of that, expense has been incurred. I also say that the position is an ………………. to that where a party seeks an adjournment in the sense that this is a hearing which has been brought about entirely as a result of the failure to progress the matter in time. It is something for which as a result the Respondent has been led to incur additional costs which do not follow from the ordinary course of the proceedings. The Applicant has come to the EAT asking the EAT to exercise a discretion the same way as may be sought where an adjournment is being sought. As a result the Respondent has been put to expense. So, I say, that under the headings of unreasonable delay and unreasonable conduct, in the alternative, it is a case where I would invite you Sir to make an award for costs. If you are minded to make an order Sir, I have a summary assessment of a statement of costs. Lindsay J I will hear Mr Sykes on the position first of all. Mr Sykes By a change of solicitors, the client is legally aided and so generally costs are not awarded against the legal services commission. On the merits of the argument – you found that you have not been provided with a full explanation for the delay. Medical evidence simply does not account, but that is not the same as saying that the delay was unreasonable, it is simply not explained. However, in my submission a different threshold would apply, a much higher threshold would apply on the costs application. The Respondent would need to show that there is simply no explanation for putting in a late appeal. As I understand, you found there is not a full explanation, but there clearly is some evidence and it is all of a medical type. The appeal itself, as you have indicated, is not an appeal which would be bound to fail. There is nothing vexatious in having brought the appeal. There is no evidence of any attempt to irritate or cause accost to the other side. All of it has been done genuinely, but perhaps not very well. My submission, therefore, on the merits, is that there is no basis for an application of costs. Mr Lewis Sir, can I raise two further points ……………………… Lindsay J If there is legal aid concerned it is a waste of time, is it not? Mr Lewis No Sir, because legal aid was only, as I understand it, granted yesterday. So there is quite a number of costs incurred prior to that. Sir, the issue relating to costs, that was the first point I wished to raise. The second point was that the issue relating to costs has been canvassed in correspondence and there is, for example, a letter at page 36 in the supplemental bundle where the point was made that there was no merit in the application and that an award for costs would be sought, and inviting the Applicant to withdraw at that stage once we had already had the decision from the Registrar. Notwithstanding that and without adding any further evidence to bolster the situation ……………………… I do say Sir that this is an appropriate case to make an award of costs. Obviously, the amount of the costs and the assessment of those costs is a different matter but it is still falls squarely within the principles of unreasonable delay and I also say, unreasonable conduct ……………………. Lindsay J[16]On behalf of Newham, Mr Lewis makes an application for costs under Rule 34 of the Employment Appeal Tribunal Rules . That gives a discretion which only arises if the proceedings are either unnecessary, improper or vexatious, or where there has been unreasonable or other unreasonable conduct in bringing or conducting the proceedings. If one of those things can be shown then a discretion arises. If one of things cannot be shown then there is not even a discretion. It seems to me that this appeal is not capable of being described as unnecessary. It is the only way in which what had happened could be challenged. I do not see that it can be described either as improper or vexatious. I do not, in fact, understand Mr Lewis so to say. As for there being unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings, the "proceedings" as it seems to me, are the proceedings in the Employment Appeal Tribunal. As to that, there has been, as it seems to me, no unreasonable delay. I cannot describe Miss Mustofa's efforts under the advice of solicitors and counsel as being unreasonable. I do not think I have even got a discretion therefore to award costs. Even if I had, I would not exercise it in Newham's favour on the facts of the matter. I should add that it transpires that very recently legal aid has been granted to Miss Mustofa. That does not make the application for costs completely sterile but certainly would have reduced its efficacy even if I had thought fit to make an order. I make no order as to costs.