MS JOYCE SIAN v ABBEY NATIONAL PLC [2003] UKEAT 0207_03_2506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0207_03_2506Case No Appeal No. PA/0207/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS JOYCE SIANAPPELLANTABBEY NATIONAL PLCRESPONDENT
Before
Mr Justice BurtonDate 25 June 2003
[1]APPEARANCES For the Appellant MR WILLIAM PANTON (of Counsel) Messrs Simpson Millar Solicitors 101 Borough High Street London Bridge SE1 1NL For the Respondent MR RICHARD POWELL (of Counsel) Messrs DLA Solicitors Victoria Square House Victoria Square Birmingham B2 4DL THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal brought on behalf of Ms Sian against the Order of the Registrar of the Employment Appeal Tribunal, Ms Pauline Donleavy, made in Chambers on 2 May 2003, refusing an extension of time for service of the Notice of Appeal by the Appellant against the decision of the Employment Tribunal sitting at London South which was sent to the parties on 5 November 2002.[2]The way it has been argued by Mr Panton, of counsel (who was counsel for the Appellant below) has been on two bases. First, that in any event the Notice of Appeal, which was lodged on 7 February 2003, was not out of time and therefore did not need any extension. Alternatively, if it did need an extension, the Registrar ought to have granted one in the exercise of her discretion, and on the review of discretion on appeal before this Tribunal, the discretion should be regarded as having been flawed, or the Registrar as having erred in law, and an extension should now be granted sufficient to validate the Notice of Appeal.[3]The chronology of events can be shortly described without looking, as I have not done, at the merits of the case at all. There was an oral hearing by the Employment Tribunal on 28 August 2002 in respect of remedies, liability having already been found in certain respects on various claims for discrimination by the Applicant against the Respondent on an earlier occasion. The decision of the Employment Tribunal, in fact, was to award the Applicant substantial sums of money: £12,000 in respect of psychiatric injury and £22,000 in respect of injured feelings, a total of £34,000 with regard to her discrimination claim, and additional sums in respect of the loss of promotion, £15,000 in respect of lost earnings, £2,000 in respect of future loss of earnings, and in addition, sums of interest.[4]That decision was, in fact, announced orally on the day by the Chairman, on 28 August 2002, in all respects, save as to the question of interest, albeit, that, of course, a full decision would follow in writing. Mr Powell, of counsel, who appeared below, and again has appeared before me today, has relied, in part, on the fact that as from 28 August those advising the Appellant, and the Appellant herself, would have known precisely what the outcome was, subject only to the question of interest. In fact, jumping forward so far as the substance is concerned, the Appellant has wished to appeal those sums, on various bases in law, which I have not even looked at, as being insufficient. The Respondent has indicated that if an appeal were permitted to proceed they would cross-appeal, but they have not sought to appeal themselves.[5]The next event of relevance is that the decision was, in fact, sent to the parties, as I have earlier indicated, on 5 November 2002. It was received by those instructing the Respondent on 8 November 2002. It seems that, for whatever reason, the decision did not reach the Appellant, either being lost in the post between the Tribunal and her solicitor, or, perhaps, lost at the solicitor's office, but at any rate neither she nor the person particularly in charge of her case at those solicitors received the decision on 8 November. On 19 November, Mr Panton himself diligently rang up his solicitors, according to an affidavit which has been sworn by the solicitor in support of this application, to enquire whether the solicitors had heard anything as to the outcome, or, in particular, had received the remedy decision. In paragraph 5 of Mr Hurst's affidavit he said as follows:
"On the 19 th November 2002, William Panton, the Barrister who I had instructed on the matter, telephoned me to ask whether or not I had as yet received the Decision on the Tribunal. I informed him that I had not."
Nothing further occurred.[6]On 17 December 2002 the 42 day time limit, laid down by Rule 3 of the Employment Appeal Tribunal Rules 1993 , expired. On the face of it, subject to any application to extend time, the Respondent was thereafter entitled to assume that there would be no appeal by the Appellant, and of course, they themselves had eschewed any opportunity to appeal. Mr Hurst was going off on leave on 18 December, and no doubt pursuant to the ordinary administrative obligations of solicitors, clearing their desk before they leave, he dictated a letter to be sent to the Tribunal enquiring about the decision. That letter was signed on his behalf and dated 20 December 2002, 2 days after he had left the office. The letter addressed to the Employment Tribunal said as follows:
"We act for the Applicant in this matter whose original case was heard on 26 th July 2001. However, the decision of the Tribunal [on liability] was not forthcoming and neither party received a copy of the same for some six months after the Hearing. A further Remedies Hearing was then held on 28 th August 2002, upon which we are still awaiting a decision. … We would be obliged if the Tribunal could inform us as to when a decision of the Remedies Hearing will be forthcoming."
It now appears that the response by the Employment Tribunal to that was to send a further copy of the remedies decision to Simpson Millar. That was received on 3 January 2003.[7]The next step for the solicitors (Mr Hurst still being away, but obviously someone else handling the matter in his absence) was taking steps to obtain advice from Mr Panton, advice both as to the consequences of the delay in receipt of the decision, so far as the Appellant's right of appeal was concerned, and on the merits. Such advice had been sought prior to 8 January 2003, when a letter so indicating to the Respondent was sent by the solicitors for the Appellant. I have not sought to discover precisely when that advice was sought, nor does it appear from the affidavit. At some date prior to 17 January 2003 (again I have not asked, nor have I been told, precisely when) favourable advice as to the merits was given by Mr Panton to his solicitors. They wrote a letter of 17 January 2003, to which I will refer in a moment, recording that such favourable advice had been received. The letter in question was a letter to the Employment Tribunal dated 17 January 2003. It read as follows, in material part:
"We reiterate that we received a copy of the Promulgated Decision of the Tribunal on the 6 January 2003, [that is plainly an error, they in fact received it on 3 January] i.e. well outside the period for appealing of the apparent date of promulgation on 5 th November 2002. … We therefore request an extension of time for making an appeal until 7 th February 2003, and we look forward to hearing from you with your urgent response."
The response, by letter dated 23 January 2003, not surprisingly, said that the Chairman of Tribunals, had asked the writer, on behalf of the Regional Secretary, to inform Simpson Millar that the Employment Tribunal had no power to grant an extension of time for appeal. Notwithstanding that letter, and the consequent absence of any extension of time, the Notice of Appeal was not filed until 7 February 2003, the date mentioned in the letter of 17 January. That date was 35 days after receipt of the decision on 3 January 2003, and 49 days out of time, if 42 days ran from 5 November 2002 in accordance with the Rule. That is the factual scenario.[8]I shall read briefly 2 matters before addressing the arguments of Mr Panton. The Employment Appeal Tribunal Rules 1993 read, in material part, as follows:
"Rule 3(3) The period within which an appeal to the Appeal Tribunal may be instituted is – (a) 42 days from the date on which extended written reasons for the decision or order of the employment tribunal were sent to the appellant."
Secondly, the Practice Direction then in place, namely the Practice Direction Employment Appeal Tribunal 1996 , which had been in existence from 29 March 1996, and was not replaced by a new Practice Direction until 9 December 2002, read, in material part, as follows, under the rubric '3 - Appeals out of time':
"1 By virtue of Rule 3(2) of the Rules every appeal … to the EAT shall be instituted by serving on the EAT, within 42 days from the date on which extended written reasons for the decision or order of the Industrial Tribunal [of course, Employment Tribunal as it subsequently became] were sent to the Applicant, a Notice of Appeal." in 3.5: "
In determining whether to extend the time for appealing particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the EAT, as recently summarised in the case of United Arab Emirates v Abdelghafar [1995] ICR 65 ." and in 3.7:
"In any case of doubt or difficulty, a Notice of Appeal should be served in time and an application made to the Registrar for directions."
[9]Mr Panton has submitted, as I have indicated, that in fact because his client did not receive the Notice of Appeal at all, namely until she subsequently, through Simpson Millar, requested a replacement decision, as it turned out, and one was received on 3 January 2003, the 42 days did not start to run from 5 November 2002.[10]The practice in the Employment Appeal Tribunal has been based upon 2 decisions of Morrison P sitting in the Employment Appeal Tribunal. The first was called Hammersmith and Fulham London Borough Council v Ladejobi [1999] ICR 673, and the second, Mock v Commissioners of the Inland Revenue [1997] IRLR 785. His reasoning in both those cases was identical. He concluded that the words of Rule 3.2 were clear and that they meant what they said, namely that time ran from the date when the decision was sent to the parties by the Employment Tribunal, the decision having been entered in the register. He concluded, in lucid terms, in both those decisions, that Section 7 of the Interpretation Act 1978 had no applicability. Section 7 of the Interpretation Act 1978 reads as follows:
"Where an Act authorises or requires any document to be served by post (whether the expression 'served' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, preparing and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered n the normal course of post."
He concluded that the provision, what was then Rule 3.2, and is now Rule 3.3, was not one which was dealing with service by post, but was one dealing with the calculation of the date for which time starts to run for the purposes of serving a Notice of Appeal – see paragraph 7 of his judgment in Mock v Commissioners of the Inland Revenue .[11]The Order of the Registrar in this case, as indeed (so far as I know) all of her similar Orders where this point arises, is expressly made by consideration of Mock v Commissioners of the Inland Revenue [1999] IRLR 785.[12]Mr Panton relies on the more recent decision of Mr Recorder Langstaff QC in the case called Scotford and another v Smithkline Beecham [2002] ICR 264 . That was a case dealing with the construction of what was then Rule 10(4) of the Employment Tribunals Rules of Procedure 1993 , dealing with the question under the Employment Tribunal Rules as to the time in which application must be made to a chairman for the provisions of Extended Reasons. In the course of considering and allowing an appeal against a refusal to extend time for such an application and/or for concluding that the application was not out of time, Mr Recorder Langstaff QC, delivering the unanimous judgment of that panel of the Employment Appeal Tribunal, both concluded that the Interpretation Act 1978 applied to that rule such as to allow for time to run in relation to that rule, not simply by reference to the date when the reasons were sent, but also by reference to receipt, but took the opportunity to express the view that the decision of the Employment Appeal Tribunal per Morrison P in respect of Ladejobi and of Mock was, in his judgment, wrong. Mr Panton has submitted that this decision of the Employment Appeal Tribunal in Scotford was not obiter , even though it applied to a different rule, and indeed a rule of a different Tribunal, rather than to Rule 3(3) itself, because in the course of his judgment Mr Recorder Langstaff QC said, at paragraph 29:
"… the interpretation to be given to rule 3(2) of the Employment Appeal Tribunal Rules 1993 must, we consider, be read consistently with that of other relevant legislation. It could hardly be presumed that Parliament intended that time would run from one date, for the purposes of applying for reasons in extended form, or for a review, and from a different date for the purposes of time running for an appeal."
Mr Recorder Langstaff QC, points out Mr Panton, fully considered the decisions of Morrison P in Ladejobi and Mock in the course of disagreeing with them. Of course Mr Recorder Langstaff QC did not have expressly in his sights, this rule, nor did he consider the consequences of a decision that Mock and Ladejobi was wrong.[13]We now do address that question. Mr Powell has drawn our attention to the content of the new Practice Direction which has been in effect now since 9 December 2002, but which, of course, was not in force at the time, in November 2002, when time started to run in respect of this appeal, albeit that it had come into force by the time that that time had run out. Mr Powell draws our attention to paragraph 1(9) of the Practice Direction which reads as follows:
"Where it is appropriate to the EAT's jurisdiction, procedure, unrestricted rights of representation and restricted costs regime, the EAT is guided by the Civil Procedure Rules. So, for example – (a) For the purpose of serving a valid Notice of Appeal under Rule 3 and the PD para 3 below, when an Employment Tribunal decision is sent to parties on a Wednesday, that day does not count and the Notice of Appeal must arrive at the EAT on or before the Wednesday 6 weeks (ie 42 days) later."
It is apparent from that, at any rate, that the broad brush suggestion by Mr Panton, that analogies are to be found in the Civil Procedure Rules , may be right in general principle, but that, at any rate, when analogies were considered for the purposes of the 9 December 2002 Practice Direction, it is apparent that it was taken for granted that they had no applicability in relation to the question of time running from the date when the decision was sent to the parties, as opposed to any question of receipt, and indeed, allowance is made there for the question as to likely date of receipt, within the context of sending being the primary question. Further, in paragraph 3(1), under the heading 'Time For Serving Appeals', the relevant Practice Direction now reads as follows:
"By Rule 3(3) every appeal from an Employment Tribunal to the EAT must be instituted by lodging a Notice of Appeal at the EAT within 42 days from the date on which Extended Reasons for the decision or order of the Employment Tribunal were sent to the Appellant. Normally, the "date sent" is recorded on the decision or order."
That, he says, makes the position entirely clear. Indeed it does, although, of course, as we have indicated, this Practice Direction post dated, to the extent that we have already referred, at least some material part of the time in consideration before us. Nevertheless, it indicates, and it was not, it seems to me, intended to be a change, the way in which, under Mock , the practice has developed and been operated by the Employment Appeal Tribunal and the Registrar.[14]Further, Mr Powell submits, that even if the Interpretation Act Section 7 applies, it expressly allows for the contrary intention to be shown. Mr Powell refers, in that regard, to Rule 23(4), as it now is (previously Rule 20) of the Employment Tribunal Rules 2001 which reads as follows:
"23(4)(e) - in the case of a notice or document directed to a party – (i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (5) [which is a notice changing such address] "
If no such address has been specified then special provisions are made, and consequently express arrangements are made by the Employment Tribunal as to the method for sending a document, so as to ensure that a provision which depends upon the sending of a document is as resoluble as it can be in favour of the recipient by taking all possible steps to ensure that it is sent to the place the recipient notifies that it should be sent. Mr Powell submits that, if necessary, this can be referred to as a contrary intention, such as was discussed in Austin Rover Group Ltd v Crouch Butler Savage Associates and Others [1986] 1 WLR 1102 at 1112, where the question of contrary intention in relation to service of proceedings was considered by the Court of Appeal.[15]I am entirely satisfied that the procedure adopted by the Employment Appeal Tribunal is right and fair and should be continued. Without repeating the conclusions of Morrison P in either Ladejobi or in Mock , I adopt all the arguments that he there put forward and which have been followed since, save in the case of Scotford , as explaining both that it is appropriate to take the time for running of an appeal from the date when it is entered in the register and sent to the parties, and as to the non-applicability on Section 7 of the 1978 Act. If necessary, I would agree with Mr Powell that, in any event, a contrary intention would be shown. Therefore:(1) It is essential, in my judgment, to have a firm date so that the Appellant and, which is very important, the Respondent, should have certainty.(2) The 42 days is a lengthy period, as has been commented upon in previous decisions both of the Employment Appeal Tribunal and the Court of Appeal. It is a very generous period and one which, in fact, is now 3 times as long as that permitted by the Court of Appeal itself under the Civil Procedure Rules for appeals to the Court of Appeal. That allows for any risk of delay in the post.(3) If the decision were otherwise, great uncertainty would arise because it could never be clear what the date was from which time for a Notice of Appeal ran. Without in any way saying that in any particular case an inadequate or inaccurate account will be given by a would-be Appellant, the Tribunal and the Respondent will be left in the hands of the Appellant to give evidence as to precisely when he received the Extended Reasons. It will very often be impossible to challenge statements that are made which may not necessarily be accurate. Even in this case, where the Registrar has accepted the fact that this decision was not received until 3 January, the Appellant's solicitors themselves inaccurately, and I am sure accidentally, represented to the Tribunal that they had received the decision on 6 January. It is important that the courts and the parties have an exact date from which time, on the face of it, runs. Of course the onus would lie on the would-be Appellant to establish that he did not receive the document, but that would nevertheless lead to uncertainties, to mini-trials, possibly even to disclosure of documents and cross-examination, and, in particular, it would leave the Respondent totally uncertain. In an example which I put in the course of argument to Mr Panton, one could have the following situation. A decision is sent to the parties, say, on 5 November 2002. One party receives it, say, on 8 November 2002, and knows that 42 days, on the face of it, is the time limit in which he must decide whether to appeal, and decides not to, once he knows that a similar period has expired in respect of the other party, and from that time, unless there were an application for an extension, which he knows by virtue of authorities (to which I will be referring) are rarely entertained, proceedings will be at an end and he can act on the basis that the decision will no longer be challenged. The other party, however, has not received the decision and does (and that is not this case, I emphasise) nothing whatever about it, either because he or she is not represented, or, because he or she is represented and the representatives, consciously or unconsciously, take no further steps; twelve months later, either the would-be Appellant or his advisers bethink themselves that it might be a good idea to consider whether a decision ever arrived in relation to the case about which they had lost interest or have had other matters to consider. Say some 3 or 4 weeks after that, they get round to asking the Tribunal whether there ever was a decision and whether they could now please have a copy of it. That copy arrives and they then, if Mr Panton be right, have a further 42 days in which to put in a Notice of Appeal. In those circumstances, the proper understanding of the court and the Respondent that proceedings were at an end becomes immediately and inevitably falsified and proceedings automatically re-start. That, it seems to us, can neither be right nor desirable.[16]The proper answer is, in my judgment, that time runs from the sending of the decision, even if it is not delivered. The rule for which Mr Panton has found himself arguing would require rewriting, if he is correct, of the simple rule which is dealt with in very short terms in Rule 3(3), namely that the time is 42 days from the date on which Extended Written Reasons are sent to the Appellant. The new rule would require to say that it is 42 days from receipt of those reasons, which receipt is deemed to be, Mr Panton suggests, 2 days after the sending of the decision, if it be sent by first class post, which I understand is the norm. There would then need to be further provision in accordance with the Interpretation Act Section 7 that receipt would not be so deemed if the contrary were proved. That, in my judgment, would be an unsatisfactory rule where jurisdiction hangs on its outcome. Whatever may be said for Mr Recorder Langstaff QC's decision in Scotford in relation to the rule which he was specifically there considering, there is, in my judgment, a ground for a distinction, if one is required, between rules which are largely procedural (after all an Appellant is in fact permitted to bring an appeal to this Tribunal without Extended Reasons in appropriate cases) and one on which jurisdiction to bring the appeal at all hangs.[17]The potential unfairness that would arise for time to run 42 days after sending of a decision against a party who has in fact not received that decision can be resolved by the application of the ordinary discretion, and should not, in my judgment, depend upon an absolute rule irrespective of the conduct, or lack of it, by the recipient, on the basis of jurisdiction, such as has been argued by Mr Panton. That enables the facts of each particular case to be looked at, and for an extension to be granted, if appropriate. In the hypothetical example that I gave, it is quite apparent that the recipient, or non-recipient, of the Notice of Appeal would not begin to obtain any relief from the court if discretion were the issue. Thus, the example of an appeal being put in 12 months or so after the sending of the decision, but by happenstance 42 days after the would-be Appellant has got round to asking for a substitute copy to be sent, could not possibly prevail.[18]In those circumstances, given the choice between the 2 decisions of the Employment Appeal Tribunal specifically on this rule, by Morrison P, and the more recent decision of Mr Recorder Langstaff QC in Scotford , which is, on the face of it, by reference to a different rule, and not a rule of the Employment Appeal Tribunal in any event, I have no hesitation in preferring the reasoning and the result in the former cases, and I uphold the decision by the Registrar in this case by applying Mock , that the Notice of Appeal was out of time.[19]I turn then to the exercise of the discretion. This discretion is to be exercised sparingly. That is apparent from the leading decision in the Employment Appeal Tribunal in which Mummery P laid down the steps that must be taken by a diligent Applicant for leave to appeal out of time in United Arab Emirates v Abdelghafar [1995] ICR 65 . That case was approved and the position further considered by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 . The facts of Aziz further support the conclusion which I have reached, set out above, that the time runs, as the rule says, from the date of sending of a decision, and not from its receipt, because, on the facts of that case, had the time run from receipt, the Notice of Appeal would not have been out of time. Of course, it must be said, as Mr Panton has, that the point was not argued, apparently, in Aziz . That may have been because it was not considered to be arguable. I have not rested my conclusion that Mock was right in the absence of such argument in Aziz , I simply indicate that the operation of the Court of Appeal decision in Aziz emphasises how the question is one of discretion and not of jurisdiction. In Aziz the Extended Reasons were sent out on 24 March; those representing Mr Aziz misread that date, 24 March, as 27 March. If the correct date had been 27 March, the appeal would have been in time. In fact, as I have indicated, the Notice of Appeal had been received on 26 March (which, of course, underlined the strangeness of the mistake) but nevertheless showed that, had the date of receipt been important, the appeal would not have been out of time, whereas, as it was, it was accepted to be 3 days out of time, in accordance with the requirement of 42 days from the date of sending. Applying the strict guidelines laid down in Abdelghafar , the Court of Appeal upheld the decision of the Employment Appeal Tribunal, not to extend the period by that small period of 3 days, and emphasised indeed that there have been cases where an appeal one day out of time has not been permitted.[20]Against the background of the need emphasised in Abdelghafar and Aziz , for the fullest possible explanation of delay, I turn back again to the facts of this case. There appear to me to have been 2 periods of delay in this case which required explanation. Mr Powell would submit that underlying the whole period of delay is the fact that, in respect of all, save interest, those advising the Appellant had known what they were going to get and had known what to expect since the oral decision on 28 August, and it may be that this underlies the position.[21]Leaving that aside, there are 2 periods which require specific concentration. The first is the period from 19 November, when Mr Panton rang up and reminded his solicitor, if such reminder had been needed, that the decision had not yet been obtained, and/or asked whether it had been received, he not having himself been told of it. No explanation is given by the Appellant as to why no steps were taken to follow up Mr Panton's enquiry prior to the administrative act of the solicitor in charge going away on holiday a month later, by which time, of course, as it happens, unknown to the Appellant, the time limit had expired. Of itself, this could not possibly be a determinative period of delay, because, as I have indicated, at that time the Appellant still did not have the decision, but when one comes to look at the second period, the fact that there never needed to have been such a long delay makes it the more significant that there is then a further delay, once 3 January brings with it the copy of the decision. If in fact the solicitors had responded to Mr Panton's suggestion and contacted the Tribunal on or about 20 November then in fact it would still have been possible for them to have got the Notice of Appeal in before the time limit elapsed on 17 December.[22]Mr Panton submits that there had been delay by the Employment Tribunal in relation to the liability decision and that it was already some time since 28 August and, given that they had not received a copy of the decision sent out on 5 November, there was no reason why they should necessarily have believed that the decision had by then been disseminated, but his own diligence falsifies that argument, because he himself was already worried and concerned and by 19 November correctly and properly raised it with his solicitor, and yet nothing was done.[23]In any event the decision arrived on 3 January 2003. It appears clear to me that at that stage there must have been a duty of the Appellant and her solicitors to act with extreme diligence. It was now apparent to them that the decision had been sent out on 5 November and that, on the face of it, the time limit (unless some argument or other would prevail) had already expired. No explanation is given to me at all, whether within Abdelghafar and Aziz or otherwise, to explain away or justify the passage of time between 3 January and 7 February. I have sought to tweak out, from what I have seen in the documents, at least some explanation of the early delay, namely the obtaining of advice from Mr Panton, but on any basis that had been obtained by 17 January, and, in my judgment, there is absolutely no reason why the Notice of Appeal should not have been in on that date or very shortly thereafter. That is emphasised by the fact that on 17 January an extension of time was sought. It was sought from the wrong Tribunal rather than following the sensible course of putting in a Notice of Appeal to the Employment Appeal Tribunal, but that is not, of itself, to be held to be fatal to the exercise of the discretion in favour of the Appellant, because on 23 January they were put right about the fact that it was the wrong Tribunal. It was also made clear that, not least because it was an application to the wrong Tribunal, their application for an extension of time, to 7 February, had been refused. The fact that they were putting it in terms of an extension to 7 February emphasises that they were, and, as it turns out, rightly, operating on the basis that an extension was necessary; knowing as they did that an extension was necessary, and knowing that it had been refused, or been said not to be open to the Tribunal to grant, there was every urgency at that stage for the appeal to be put in on 23 or 24 January at the latest. As I have indicated, there is no explanation given for the delay until 7 February. No explanation is given as to why the date to which an extension was sought was nevertheless adopted, even when no extension was given. Given that 1, 2 or 3 days out of time, over and above the 42, has been fatal, in my judgment, even taking just the period from 24 or 25 January to 7 February, that is a period of nearly 14 days, which is, of course, the total amount of time available to an appellant in the High Court, the delay is fatal (particularly unexplained, as it is) to any request for extension of time, where in fact the time limit was already well exceeded.[24]In those circumstances, I conclude that the Registrar was entitled to exercise her discretion to refuse the order and I see no error in law involved. If I am, as I have done, to exercise my own discretion, I refuse it also.