MR R P NAYLER v NHS INFORMATION AUTHORITY [2002] UKEAT 763_01_2101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 763_01_2101Case No Appeal No. PA/763/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R P NAYLERAPPELLANTNHS INFORMATION AUTHORITYRESPONDENT
Before
Mr Justice LindsayDate 21 January 2002
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent Mr J Evans Solicitor Messrs Theodore Goddard Solicitors 150 Aldersgate Street London EC1 4EJ MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Mr R P Nayler. He is appealing against the refusal by the Registrar to extend time for the lodging of a Notice of Appeal. This morning Mr Nayler has appeared in person, and the Respondent, the NHS Information Authority, has appeared by a solicitor, Mr Evans.[2]The chronology in the matter is as follows: on 16 February 2001, Mr Nayler presented an IT1 for unfair dismissal. The relevant employment, he said, had ceased on 12 August 1996. Immediately one is struck by the long gap between the cessor of employment and the lodging of an IT1.[3]On 7 March 2001, the Respondent Authority lodged its IT3. It took the point that the IT1 was comprehensively out of time. It set out reasons for opposing the application made by Mr Nayler and said in its last paragraph:
"In the light of the above correspondence, it is clear that the Applicant was not dismissed, but agreed to take early retirement, and it appears that the Applicant's actual complaint relates to the decisions of the Benefits Agency rather than any conduct of the Respondent."
[4]The matter went forward to a hearing on 9 April 2001 at Exeter. On 12 April, the Decision was sent to the parties. It was the Decision of the Tribunal, under the chairmanship of Mr J G Hollow and it was:
"The unanimous decision of the Tribunal is that the application was presented out of time. It would have been reasonably practicable for the application to have been presented within time. The application is dismissed."
[5]The time for lodging a Notice of Appeal against that Decision was forty two days from 12 April 2001. The forty two days expired on 24 May. By 24 May no Notice of Appeal had been received by the Employment Appeal Tribunal, but one had been posted by Mr Nayler, as I shall come on to in a little more detail.[6]On 29 May the EAT received the Notice of Appeal directed against that Decision of 12 April, and Mr Nayler was told a little later that he would need to apply for an extension of time. On 6 June he asked for an extension of time; the Notice of Appeal, he said, had been posted on 23 May. He said:
"2. My Notice of Appeal was posted on Wednesday 23 rd May. Next day delivery was guaranteed by the Royal Mail under their Special Delivery scheme. A fee of £3.80 was paid. 3. If the guaranteed delivery had taken place my Notice of Appeal would have been received by the Employment Appeal Tribunal on Thursday 24 th May, which would have been the last day for receipt under the 42 day rule. 4. It appears delivery was delayed until Tuesday 29 th May by industrial action at Royal Mail sorting offices."
[7]On 2 July the Respondent Authority, having been consulted, as is usual, by the Employment Appeal Tribunal, opposed any extension of time and on 11 July Mr Nayler added his final comments. The matter then went to the Registrar and she made an Order on 30 July. It said, inter alia:
"AND UPON FURTHER CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 71C " there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits"
. AND UPON FURTHER CONSIDERATION of ABDELGHAFAR 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. AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused."[8]On 30 July Mr Nayler appealed against the Registrar's Order. He has submitted a Skeleton Argument; he accepts that the Notice of Appeal was not delivered until 29 May and was not posted until 23 May. The forty two days from the date on which the Decision was sent out is provided in Regulation 3(2). The last day was, undoubtedly, 24 May, but Mr Nayler, in posting on 23 May, paid the special fee to the Royal Mail of £3.80 for a guaranteed delivery next day on 24 May. He has produced the Post Office slip that says, inter alia:
"Guaranteed delivery date 24 05 01 Total price paid £3.80"…… If your item is delivered late ….. We'll give you your money back if we haven't attempted to deliver your item by 12 noon on the date shown above."
It has been confirmed in correspondence by the Royal Mail that the reason for the late delay was industrial action in London at the time. Thus Mr Nayler was sent a letter on 14 June by the Royal Mail that says:
"Thank you for your enquiry of 7 June 2001 about the Special Delivery item which you posted to London on 23 May 2001. May I say first of all, how sorry I am that we did not achieve the guaranteed delivery time on this occasion. As you may be aware, there was a postal strike in London at the time you posted your item, which severely affected all mail services, including the Special Delivery services."
The Royal Mail refunded the money, and on 31 July, there was a confirmatory letter from the Royal Mail that said:
"I am sorry to learn that your item was not delivered as expected. However, I can confirm that the delay in delivery was due to Industrial Action taking place in London at the time."
And they apologised for the inconvenience.[9]Guidance in this corner of the law is given by the Abdelghafar case, to which reference has already been made, and, as Mr Evans points out, in the later Court of Appeal case, Aziz -v- Bethnal Green . It is quite plain that a person who leaves delivery of his Notice of Appeal towards the last of the forty two days, the forty two days being quite a generous period, runs a grave risk that it will not be delivered in time, but not, I would have thought, the risk that the Royal Mail would break its written guarantee purchased from the Royal Mail at special extra cost. Moreover, one has to reflect that if, on going to the Post Office on 23 May, and being told by the Post Office that delivery on the 24 th could not have been guaranteed, Mr Nayler would have had other forms of delivery open to him. He could have, perhaps, have faxed the Notice of Appeal, or even have brought it up personally.[10]The existence of the Royal Mail guarantee seems to me a factor very much in Mr Nayler's favour, a factor tending towards a setting aside of the Registrar's refusal to extend time. Against that, though, I have to some extent to bear in mind the merits of the appeal against the Order made by the Employment Tribunal, sent to the parties on 12 April. The underlying merits of Mr Nayler's position seems to me to be very very weak. It is, in my view, more than likely that Mr Nayler's appeal would fail were time extended for it to be received. It is, in my view, probable that it would fail. There is plainly not only the fact that his IT1 was comprehensively out of time, but that, in any event, a strong case could be made that there was no dismissal but rather the acceptance of early retirement.[11]The merits of the underlying appeal generally pay a relatively small part in cases such as the one before me, but it is plain that there is no point at all in allowing an extension of time for an appeal which will necessarily fail. However, the usual practice is for the existence or not of an arguable case to be ruled on not by a judge alone, but by a panel of three, including two lay members.[12]If, without regard to the merits of the underlying appeal, the appeal would have been allowed to go forward because of the special position of the Royal Mail guarantee, then for me to give no extension of time would be close to my inventing a process under which a judge alone could dismiss an appeal on its merits. Mr Evans resists that line of thought by saying, quite rightly, that it would be wrong that the NHS Information Authority should be left in the position of uncertainty any longer than it need, and that this matter, given that employment had stopped as long ago as 12 August 1996, really does need to be brought to an end.[13]Against that, though, if the argument that Mr Nayler's case will be bound to fail at the preliminary hearing is correct, well then, there really is no true uncertainty, and, in any event, it would subsist for only a further short period until the preliminary hearing was heard. I think I ought to warn Mr Nayler that if he takes his appeal forward to the usual preliminary hearing he may very well be merely wasting his own time and his own effort but, for the reasons that I have given, I do think that the Royal Mail guarantee puts the matter into a special position and that it would be wrong for me to dismiss the application for an extension of time simply on the ground that, in my own view, the substantive appeal would be likely to fail in any event.[14]Accordingly, I will allow the appeal against the Registrar's Order. I extend time for the lodging of the Notice of Appeal to the date on which it was lodged, 29 May, but I do want Mr Nayler to think hard about whether it is truly worth taking the matter forward to the preliminary hearing which will be the next step in the proceedings, if indeed, a next step is taken.