MR J C DOLEGA-OSSOWSKI v HARVEY NICHOLS [2003] UKEAT 1300_02_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1300_02_2003Case No Appeal No. PA/1300/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J C DOLEGA-OSSOWSKIAPPELLANTHARVEY NICHOLSRESPONDENT
Before
His Honour Judge J McMullenDate 20 March 2003
[1]APPEARANCES For the Appellant MR J LADDIE (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MR C BENNION (of Counsel) Instructed by: Legal Personnel & Management Services Merchants House 1-7 Leeds Road Windhill Bridge Shipley West Yorkshire BD18 1BP HIS HONOUR JUDGE J McMULLEN QC I am hearing two appeals from decisions of the Registrar not to admit Notices of Appeal which were submitted out of time. I will deal with them together, since by consent of the parties, I heard first Mr Dolega-Ossowski's case and representations from both advocates and then I heard Mr Pritchard's case, and representations from both advocates, and indicated I would give my judgment in the former at the end of the latter. For the most part the advocates have been present throughout.[2]The principles of law to be applied in the exercise of a decision to extend time have been fully set out in judgments of the EAT and the Court of Appeal in United Arab Emirates -v- Abdelghafar [1995] IRLR 243 and Aziz -v- Bethnal Green City Challenge Company Ltd [2000] IRLR 111 . In Aziz , the Court of Appeal approved the guidance given by Mr Justice Mummery, President, in United Arab Emirates at paragraphs 21 - 29.[3]They remain in the forefront of my mind, as I consider the principal issues in the exercise of the jurisdiction before me today. They are: 1) What is the explanation for the default? 2) Does it provide a good excuse for the default? 3) Are there circumstances which justify the EAT taking the exceptional step of granting an extension of time?[4]In considering and balancing the factors, one matter which may be relevant is a consideration of the merits. Such consideration cannot be in detail, but I have been urged by all of the parties to consider the merits of the cases, although my observation of them is, at this distance, without the detail necessary for a conclusion at a full hearing.[5]In the first case the Decision of the Employment Tribunal was recorded in manuscript as having been sent to the parties on 19 August 2002. It is signed by the Chairman, Mr N Weiniger, sitting at London Central. No other date appears upon the Decision and Reasons of the Tribunal. I have been told that accompanying the Decision and Reasons was a document headed "Notes on Tribunal's Decisions". This is in standard form. It says at paragraphs 3 and 18 as follows:- "3 The reasons for the decision state whether they are in extended or summary form ……. The request for extended reasons must be made in writing within twenty one days of the date on which the decision will be sent to you. This date can be found stamped on the decision document. Your request should be sent to the Regional Secretary of the Tribunals. 18 The Notice of Appeal should be accompanied by a copy of the Employment Tribunal's decision and a copy of the extended Reasons for it. If you have received a decision giving only summary reasons, you should request extended reasons, see paragraph 3 of this note. The Notice of Appeal must be served on the Employment Appeal Tribunal within forty two days of the date on which the extended written reasons for the decision which is the subject of the appeal was sent to you. This date is shown on the last page of the document containing extended written reasons. An application for review - see paragraphs 12 - 15 above - does not alter the time for the Notice of Appeal which continues to run. Action to appeal may be taken while awaiting the result of an application for review." It will be seen that the notes on Tribunal decisions are in structured form: paragraph 3, relied on by the Applicant in this case, deals with the distinction between the reasons being in extended or summary form. Paragraph 18 falls within the section headed simply "Appeal against Tribunal decision".[6]The Applicant in this case was engaged in both an appeal and a review. The Decision was sent to the Applicant's solicitors who had represented him and instructed Counsel throughout the hearing before the Employment Tribunal. I have been handed "Notes" which is said to have been included with the Decision and from I have quoted above. There is at the top right hand corner a date stamp which reads: "20 AUG 2002".[7]The assertion by the Applicant is that it was this date which caused him to believe that the time began to run from, and not the 19 th . I have also been shown a letter from his solicitor Ms Gill, to the Applicant dated 21 August 2002. This letter says:
"Further to our telephone conversation today please find enclosed a copy of the Tribunal's Decision detailing their Extended Reasons. I have explained to you over the phone you have forty two days within which to appeal the Decision, if you wish. You should let me know within the next two days at the latest whether you would like me to request Counsel's opinion on the merits of an appeal."
The Applicant's solicitor has disclosed this. It contains a forthright opinion advising against any appeal, since there appear to be no valid grounds.[8]The first issue to decide, therefore, is the date from which time runs. The Applicant has contended that he was misled by the wording in the Notes. On 11 September 2002 he wrote to the Employment Tribunal in connection with a review. He said this:
"I have received the decision from the Tribunal Chairman dated 20 August 2002. Because of holiday commitments I have only started reading the documentation properly last week. Having discovered a number of errors it has taken longer than previously thought to go through the twenty three page decision. I have spoken to my solicitor. She informs me that my barrister is on holiday and if I wish for him to examine the document more intently there will not be enough time for him to do so when he returns. Please can you ask the Chairman if I can have an extension for the forty two days Notice of Appeal, which I believe is due to end on 30 September 2002"
If the Decision was promulgated and sent to the parties on 19 August, the correct date for the expiry of the forty two days in which to lodge a Notice of Appeal to the EAT is 30 September 2002.[9]A letter in similar form but with, in my judgment, a crucially different wording was sent by the Applicant to the Employment Appeal Tribunal on 6 October 2002. In it the Applicant, acting for himself, says:
"Although I have received the decision from the tribunal chairman stamped 20 th August 2002 ……." and he then goes on to make points similar to the above. He then says that he believed the limitation date to be 1 October 2002. The significant difference is the introduction of the word "stamped"
. It is the Applicant's case that he relied upon the stamping. He was not relying upon that in his representation on 11 September. The language of his first letter, it seems to me, is difficult to understand. The Decision is what he is referring to and he points out that it is from the Tribunal Chairman. The Decision, of course, is from the combined Employment Tribunal. The relevance of the Tribunal Chairman personally is that he is under the duty to sign the document. That makes it inexplicable for the Applicant to say that it was dated 20 August 2002. The close relationship between the Decision, the Tribunal Chairman and the date all point toward the date which appears at the foot of the Reasons, 19 August 2002.[10]Further, the reference to the Notes indicates that in the very place where the Applicant should seek assistance, that is appeals to the EAT, the matter is put beyond doubt. The date which the Applicant is looking for appears unequivocally as 19 August 2002. I find that that is the date which is relevant to these proceedings. It thus expired on 30 September and the Notice of Appeal submitted on 1 October is out of time.[11]I then turn to the excuse for this. The Applicant was plainly working on the matter himself to such an extent that he was able on 15 September 2002 to produce an eleven page highly concentrated application for a review. The application appears to have been accepted out of time and was dismissed by the Chairman. It follows that the close attention required to produce this document could have also produced a Notice of Appeal. I see no reason why the Applicant could not have done that himself at the same time. The sole basis for the delay put forward by Mr Laddie, on behalf of his client, was the Applicant being misled as to the relevant date for submitting his Notice of Appeal. I reject that as a good excuse for the reasons which I have explained above.[12]Further, the Applicant was at all times alert to the fact that he had to put in a Notice of Appeal within a particular deadline, forty two days, as his solicitors had advised him and as he originally anticipated that was 30 September. I do not accept the contention that the Applicant was misled in any way by a document upon which appears the date-stamp. The solicitors have changed, I have not seen the complete file, and it is unclear where that date-stamp came from.[13]Mr Laddie asserts that it is to be inferred that the Tribunal office prepared the Reasons and affixed in manuscript the 19 August date, but did not send out the document until the 20 th when accompanying notes were date-stamped. It seems to me most unlikely that that occurred and I do not accept it as a reasonable possibility. I have myself been a Chairman in London Central and have not come across the practice of stamping a document in that way. My associate sitting today has not seen such a stamp either. It is perhaps more likely that this was a stamp affixed by the solicitor; I make no speculation about it, but in any event, I reject the Applicant's excuse as being a good one.[14]Are there any exceptional circumstances which allow me to take the step of granting an extension of time? It follows, since I reject his excuses, that there should not be an exception made in his case and I do not do so. The appeal is dismissed.