MISS H LONGLEY v ROYAL NATIONAL INSTITUTE FOR THE BLIND [2002] UKEAT 1357_01_2201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1357_01_2201Case No Appeal No. EAT/1357/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS H LONGLEYAPPELLANTROYAL NATIONAL INSTITUTE FOR THE BLINDRESPONDENT
Before
MR COMMISSIONER HOWELL QCMRS T A MARSLANDPROFESSOR P D WICKENS OBEDate 22 January 2002
[1]APPEARANCES For the Appellant MR M JONES (Solicitor) Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF MR COMMISSIONER HOWELL QC We have before us by way of Preliminary Hearing an appeal by a Miss Helen Longley against the procedural decision of the Tribunal Chairman exercising of his own motion, as recorded in a letter dated 1 November 2001 at page 4 of the appeal file, the power which it is conceded he has under Rule 17 of the Employment Tribunals Rules of Procedure 2001 SI No. 1171 to validate the Respondent's Notice of Appearance by granting them an immediate extension of time of some twelve hours for it to be lodged with the Tribunal.[2]The Respondents in the proceedings, brought by Miss Longley in an Originating Application of 5 December 2001 alleging unfair dismissal and disability discrimination, were the Royal National Institute for the Blind. Their detailed answer to her proceedings lodged by their solicitors, Bates, Wells and Braithwaite, was sent by Bates Wells to the Tribunal by fax at 11.27am on 30 October 2001.[3]It is said by the Applicant's solicitors to be assumed that Bates Wells received the relevant IT5 form requiring them to enter a Notice of Appearance on the same day that the Applicant's solicitors themselves received it – that is Monday 8 October 2001. The prescribed time limit under Rule 3 of the Tribunal Procedure Rules for entering an appearance is within 21 days of receiving the copy of the Originating Application. On the assumption made by the Applicant's solicitors the Respondents' time for doing that would have therefore expired on midnight on 29 October 2001, the night before 30 October, when they lodged the Notice of Appearance responding in detail to the allegations made in the Originating Application, at 11.27am.[4]The Tribunal's decision letter simply recorded that:
"Your Notice of Appearance was received out of time. A Chairman, Mr Threlfell, has of his own motion validated the Notice of Appearance by extending the time under the provisions of Rule 17 of the above Rules."
A copy of that letter was sent to the Applicant's solicitors.[5]By their Notice of Appeal dated 8 November 2001 it is alleged that that decision was defective because the Respondent had failed to give reasons for its non-compliance with the 21 day time limit under Rule 31 of the Rules and had not applied for an extension of time to enter its Notice of Appearance at all. Accordingly, it was asserted that the Chairman failed to exercise his discretion properly in validating the Respondent's Notice of Appearance under 17(1).[6]Mr Jones, who appeared before us on behalf of the intending Appellant (the Applicant below), has refined and amplified those grounds of appeal in his submissions to us and made clear that it was not disputed that under Rule 17(1) a Chairman has, what is on the face of it, an unfettered discretion to extend of his own motion the time for doing any act appointed by or under those Rules even if no application has been made by or on behalf of a party that he should do so. That, in our judgment, was an entirely right and correct concession for Mr Jones to make. It is, in our judgment, quite apparent from the wording of Rule 17(1) that a Chairman may exercise the power to extend time in two separate circumstances; either , if a party makes an application to him to do it; or , if he considers it right to do so of his own motion without any application having been made by the party concerned at all.[7]Mr Jones' submission therefore, departing from the primary way in which the appeal was put in the Notice of Appeal, was that it had been improper in these circumstances for the Chairman to have exercised the power of his own motion without requiring an explanation from the Respondents, or from their solicitors, as to why, if the time expired at midnight, the Notice of Appearance setting out the Respondent's case had not been submitted until 11.27am the following morning. He submitted that in those circumstances it was incumbent on the Chairman, before determining to exercise the power of his own motion, to require an explanation from the Respondent for their failure to comply with, what Mr Jones said, was otherwise a mandatory time limit that had to be observed. The logical consequence of that was that failure to comply with the time limit and failure to obtain an extension of time in the proper way would lead to the Respondents being debarred from defending the proceedings altogether.[8]Having considered Mr Jones' arguments we have not been persuaded that that is the right way of approaching what appears to us to be an unfettered discretion for the Tribunal Chairman under the express terms of Rule 17(1). We do not for our part find anything inconsistent between the express discretion given to the Tribunal Chairman to exercise the power of his own motion under Rule 17(1) and the requirements under Rule 3 as to the normal time limit during which a Respondent is required to enter its appearance. We have not therefore been persuaded in particular that it is arguable, as Mr Jones contended, that the exercise of the power in Rule 17(1) of the Chairman's own motion is subject to, what in effect, if Mr Jones' argument is accepted, would be an implied precondition that it cannot properly be exercised to extend the time for a Notice of Appearance without some additional procedure being gone through of asking the Respondent for an explanation for his lateness: however short the period of lateness should happen to be, and however obvious the practical advantages of waiving, what on any footing in the context of this case, is a comparatively small irregularity on the part of the Respondent, in the interests of getting on with the case and bringing on the real issues between the parties for a proper determination in the normal way.[9]Mr Jones referred us to a decision of the Appeal Tribunal set out in the judgment of Mr Justice Morison on 9 October 1996 in City Centre Restaurants (UK) Ltd T/A Garfunkel's v Calheiros EAT/1061/96. He said that one particular passage in the observations of Mr Justice Morison supported the contrary view to what would otherwise appear to us to be the clear and unlimited discretion in Rule 17(1) as it now stands. That passage is at page 6 of the transcript where Mr Justice Morison said:
"It seems to us that the position is as follows: that where the tribunal is considering whether an extension of time should be granted or not, they should first of all satisfy themselves that a reasonable explanation has been put forward for the non-compliance with the court's rules. Only when such explanation satisfactory to the tribunal has been given, will it be necessary to consider the question of prejudice, and in those circumstances, it is likely on the facts of a case similar to this one, that if stage two is reached the discretion will be exercised in the respondent's favour."
We are satisfied however, having looked at the full transcript of that case, which has been helpfully obtained for us this afternoon, that the case Mr Justice Morison was there dealing with was by no means comparable to the present one. That was a case where the Respondents had failed altogether to lodge a Notice of Appearance at the proper time and had only done so by way of fax to the Tribunal very shortly before the case was due to come on for hearing. In those circumstances the Tribunal had considered whether the Respondents should be allowed to defend the proceedings by way of extending the period so as to validate the Notice of Appearance. The Tribunal's decision, an entirely proper one in the circumstances of the case before them as shown in the transcript of the judgment, was that they did not consider they should exercise their discretion so as to extend the period to allow the Respondents to file such a late Notice of Appearance, so that in the circumstances there the Tribunal debarred the Respondents from defending the claim altogether.[10]The submission made to the Employment Appeal Tribunal presided over by Mr Justice Morison in that case was that the Tribunal had thereby erred in ignoring the substantial prejudice to the Respondents that would result from the effect of that order, debarring them from defending the claim altogether. The remarks made by Mr Justice Morison which we have quoted were made in the context of that submission and in the context of the Appeal Tribunal's rejection of the submission that prejudice should be the principal matter to be taken into account in deciding whether to extend the time or debar the Respondents from defending the proceedings. As the Tribunal said in the passage just above the one we have quoted:
"It seems to us that if one was to take prejudice as the guiding principle for the determination of the exercise of the tribunal's discretion to extend time, it would be most unlikely that there would be any case where time would not be extended. Thus by applying the prejudice rule as the prime rule, the time limits provided by the Rules would become meaningless."
In our judgment, the remarks Mr Jones relied on were made in the very different context of the submission thus made, that prejudice should be the guiding factor even in the absence of a reasonable explanation for a delay, for which the circumstances of that case plainly cried out.[11]We are also satisfied that that was a case where the Respondents had been applying for the admission of their Notice of Appearance out of time, and was not a case where the Tribunal Chairman had determined that it was right to exercise the power to extend time of his own motion at all. The Tribunal's remarks in that case were not directed to the extent or proper exercise of a Chairman's power to grant a short extension of his own motion, as happened in this case. We do not think that what was said in the City Centre case can be taken as laying down a general principle that precludes the exercise of the power in Rule 17(1) by a Chairman of his own motion in the way that was done in the circumstances of this particular case. We emphasis, of course, that, as with all discretionary decisions on procedural matters, the decision whether or not to exercise it in particular circumstances is a matter for the Employment Tribunal or the Chairman charged with exercising the discretionary power.[12]In our judgment the guiding principle that we should apply in this case is the general one applicable to the exercise of all such powers as a matter of discretion and judgment on procedural questions: that the Appeal Tribunal has no ground to interfere unless an error of law or impropriety in the way the power is exercised has been shown, and that is a heavy burden for an Appellant to discharge in the circumstances of the present case. We have been given nothing to suggest that the Tribunal Chairman exercised his power other than in an entirely proper and, if we may say so, very sensible way, to enable the real issues in this case to be got on with and determined. We have not been satisfied there is any arguable way in which it can be said he erred in law. For those reasons we now unanimously dismiss this appeal.