MISS HELEN JACKSON v WALSALL METROPOLITAN BOROUGH COUNCIL [2005] UKEAT 0283_05_2809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0283_05_2809Case No Appeal No. UKEATPA/0283/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS HELEN JACKSONAPPELLANTWALSALL METROPOLITAN BOROUGH COUNCILRESPONDENT
Before
His Honour Judge McMullenDate 28 September 2005
[1]APPEARANCES For the Appellant MISS HELEN JACKSON (the Appellant in Person) For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Practice & Procedure: Appellate Jurisdiction On the Appellant's presentation of a Notice of Appeal 327 days out of time, albeit a letter from solicitors was faxed two hours out of time while Appellant was in hospital, discretion declined following Woodward v Abbey National [2005] ICR 1750 and Schultz v Esso Petroleum Ltd [1999] IRLR 488 CA. HIS HONOUR JUDGE McMULLEN QC This is an appeal against the decision of the Registrar in which she refused to allow an extension of time in which to serve a Notice of Appeal. The appeal is a rehearing and I hear the matter afresh. I will refer to the parties as the Claimant and the Respondent.[2]The Claimant in the substantive appeal, Ms Jackson, is, as asserted by the Respondent, and gratefully accepted by herself, an accomplished employment lawyer, being a member of the Bar with several post-graduate qualifications in law. The Claimant is engaged in proceedings which, I understand, this morning have now been fixed over eight days to take place in February 2006 before a Birmingham Tribunal. Her claims invoke the "whistle blowing" jurisdiction and include claims of sex and race discrimination.[3]Prior to the claim being heard, it was necessary for a number of case management decisions to be made. One was made in 2003 by a Chairman, Mr Rees and a further decision was made after a hearing on 17 February 2004 - the judgment was entered on the Register on 3 March 2004. This was constituted as a hearing of an application by the Claimant for disclosure of documents against the Respondent. The outcome was to refuse the application. It was heard by a three person tribunal; the Claimant represented herself; and the Respondent, a local authority, was represented by Counsel.[4]The substance of the claim, although of great importance to the Claimant, is of less importance at the hearing of an appeal than the Claimant contends. The underlying merits of the Claimant's case are relevant if the case plainly has no merit: see the judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 . Otherwise, the underlying merits of the case will usually be of little importance in deciding the issues relevant to whether or not an appeal was lodged on time: see United Arab Emirates v Abdelghafar & Abbas [1995] ICR 65 .[5]The principles upon which the EAT exercises its jurisdiction to extend time and regulates the handling of Notices of Appeal has been the subject of a recent judgment of Burton P and members in Woodward v Abbey National [2005] ICR 1750 . In short, the EAT is entitled to be strict in requiring appellants to observe the six week deadline, described as generous, in appeals for lodging a Notice of Appeal complete with all relevant documents. When documents are submitted by fax, a complete fax must have been received by the EAT before 4pm on the relevant date.[6]For the purposes of this appeal, the calendar is as follows. The registered decision of the Tribunal was 3 March 2004; on 8 April 2004 the Claimant suffered a fall at her home and was hospitalised. At about that time she instructed solicitors, who had previously assisted her, to make contact with the EAT. On 14 April 2004, at 17.51 the solicitors lodged a letter. It was thus out of time. The question is whether an extension of time should be allowed to admit that.[7]On 7 March 2005 a properly constituted Notice of Appeal, in accordance with Rule 3, was lodged by the Claimant herself. It was thus 327 days out of time. The Claimant asked for an extension of time in order to validate the Notice of Appeal and the Registrar refused. The Claimant relied upon the letter from her solicitors faxed on 14 April 2004 and upon her ill health which was not only the result of her fall, but of a number of compound other illnesses, as a reason for the exercise of discretion. The Registrar indicated that she had not seen the letter of 14 April from the solicitors. This has now been vouchsafed; I have seen this; I have also read the evidence of the Claimant today in the form of an Affidavit. It is fair to say also that I have heard a good deal of oral evidence from the Claimant, as she has represented herself today. I am asked to decide issues of fact and exercise my discretion on the basis of the findings. I bear in mind that the Respondent was offered an opportunity to be here at these bilateral proceedings but has not attended, for it has written a letter to that effect.[8]The Claimant takes very seriously the issues which she wishes to place before the Tribunal in Birmingham. She contends that under the Human Rights Act 1998 , it is essential to bear in mind the right to a fair trial and that the Claimant is raising issues of public importance. As I have said, the law indicates that the underlying merits of a case will often be of little relevance. However, I will assume that the issues are important to the Claimant. The real question is whether there was any merit in the case on appeal, which is to say the order refusing further disclosure rather than the substantive merits of the Claimant's case against the Respondent under the various statutory heads.[9]Because it has formed such an important part of the hearing before me, I will indicate that I do not regard the strength of the Claimant's case in overturning the decision of the Tribunal as very good. The Tribunal itself has weighed up the relevant issues on disclosure; it bears in mind the issues which are to be determined by it at the full hearing. It has paid attention to the history of the case and it has exercised its judgment as well as its discretion in order to move forward the proceedings in this case. It has also borne in mind that its own judgment on disclosure followed that of the previous Chairman a year earlier.[10]If I were required to take a view upon the merits of this appeal against the disclosure order, I would hold that it fell within the terms of Sir Christopher Staughton's position - it appears to have very little merit. However, the substantive proceedings before the Employment Tribunal are regarded by the Claimant and, I have to say by me, as serious. They raise important issues and they will be tried.[11]I then turn to consider whether or not to extend time. It is clear from Woodward that time will not be extended except in unusual circumstances. What are they? The Claimant is highly qualified. I have paid attention to the letter written by the Respondent which was influential in the decision made by the Registrar indicating the Respondent's position on this appeal on 8 August 2005:
"The Claimant would have known of her ability to ask the Tribunal for further disclosure and how to go about it if she thought it that relevant. Instead, she substantially delayed in doing so"
. That, of course, relates to the issue in the disclosure case and goes to the merits. What is more important is this: "Despite her current claims as to her state of health, the Appellant was apparently fit to conduct litigation in February 2004 and had been working as a locum lawyer with a London borough. She knew of the decision she seeks to appeal prior to receiving written confirmation, having been present when oral reasons were given and indicated on the day when the decision was made that she intended to appeal, causing the final hearing, which was about to commence, to be adjourned. It is to be anticipated that, in these circumstances, she had her grounds of appeal in mind. The Respondent recalls the Claimant had the assistance from solicitors who had been supporting her on the day in question and believed that the issue of an appeal over disclosure was canvassed by the Appellant with the Respondent in those solicitors' presence. Thus there is little to explain the delay in submitting an appeal between the receipt of the decision and the Appellant's unfortunate accident. So far as the Respondent is aware, there is no evidence that the Appellant was continuously unwell and unable to submit an appeal from her accident in April 2004 until the date she finally made her appeal. In those circumstances, the Respondent was strenuously opposed to an extension of time in this case".[12]Having referred to the relevant authorities, the Registrar decided as follows: "It is not an acceptable reason for delay that the appellant sustained a fracture to her ankle on the 8th April 2004 and was in plaster for twelve weeks. The Decision was sent on 3 rd March and she was therefore not prevented from appealing before that date and nor is it accepted that she was disabled from conducting business. In any event, she would have" been capable of submitting an appeal at an earlier date as her health problems appear to be ongoing and have not prevented the conduct of litigation. Six weeks is a generous amount of time in which to appeal and the appellant appears to have taken no steps to deal with this matter".[13]Uptodate material has now been provided to me in the form of the Affidavit to which I have referred and a Skeleton Argument on behalf of the Claimant. I hope she will not consider it unfair for me to say that despite the reminders given by the Registrar and despite the 20 or so e-mails which have arrived at the EAT in the last four days, the Claimant has not focused on the principal issue which is whether or not there were reasons which would justify the exercise of discretion in her favour to extend time. Instead, there is a good deal of material indicating the importance of the substantive issue to the Claimant and the importance of the disclosure issue in advance of those issues at the substantive hearing.[14]The Claimant has shown me a sequence of medical certificates indicating her hospitalisation and her recovery. The sole medical opinion which the Claimant has put before me is a letter dated 17 March 2005 from her general practitioner, Dr Staff which was prepared for the purposes of seeking an extension of time. "My patient has asked for a summary of her health problems which I am please to submit. I have been her G.P. since January 2003. On the 8th April 2004, she sustained a fracture of her lateral malleolus of ankle with considerable soft tissue injury of the medial malleolus collateral ligament. This required screw fixation. She slowly mobilised with crutches etc, but because of her morbid weight problem she made slow progress and continues to have pain and disability in the ankle despite physiotherapy etc. Her progress has been slow and she still has limited mobility being dependant on friends for transport over distances and only able to walk a few hundred yards maximum. Her certificates from then onwards have stated this as her major problem. However, the last two years have been difficult years health wise with accumulation of other problems, not least diagnosis of diabetes in 2002, plus hypertension -beginning treatment in 2003. She has had repeat gynaecology assessments in 2003 and 2004 for post menopausal bleeding which gave rise to concern. She also had concern having developed a breast lump in late 2004, which fortunately proved to be benign. She has a weight of approximately 155kg with a BMI of 54.3. She is an intelligent woman and realises that this obesity is compounding all of her problems and is attempting to tackle the situation. Laterally she has also developed visual problems and was at the Eye Hospital this last week for assessment. Her medication is Ramipril 10mg daily, Glicazide 80mg bd, Metformin 500mg tds, Bendrofluazide 2.5mg daily, Simvastatin 20mg daily and Orlistat tds. She has become not only disabled by residual pain and stiffness in her ankle but also as you can see has had a large number of health concerns to be dealing with over the last two year period which have preoccupied her to the detriment of addressing employment related matters". From this it can be seen that the Claimant does, indeed, have a number of medical difficulties and I have a good deal of sympathy with her in the way in which she is coping with those and her ability to handle the issues of a forthcoming long hearing.[15]However, this medical report does not explain why it was that there was a period of 327 days between the deadline ending and the final appeal being submitted. With respect, the general practitioner has not indicated how it was that any of these conditions precluded the presentation earlier than 7 March 2005 of a Notice of Appeal and that, in my judgment, is fatal to the Claimant's application to extend time today.[16]As part of her submissions, I know the Claimant has been much concerned with what she describes as Rule 4, but what she means is Practice Direction paragraph 4 which deals with interim applications. It provides as follows:
"4 INTERIM APPLICATIONS 4.1 Interim applications should be made in writing (no particular form is required) and will be initially referred to the Registrar who after considering the papers may deal with the case or refer it to a judge. The judge may dispose of it himself or refer it to a full EAT hearing. Parties are encouraged to make any such applications at a Preliminary Hearing ("
PH") or an Appointment for Directions if one is ordered (see paras 9.7 - 9.18 and 11.2 below)" This, however, does not assist the Claimant, for the institution of an appeal and the time for instituting appeals are the subject of separate Practice Directions: see paragraphs 2 and 3. The rule for the presentation of a Notice of Appeal is plain under the EAT Rules themselves: see Rule 3.[17]The highest it can be put at is that the letter from the solicitors was an application for an extension of time:
"I refer to your letter dated 24 March 2005 (received 30 march 2005) and my subsequent telephone conversation and fax to Ms Armstrong on 11 April 2005. As explained to Ms Armstrong, there was a considerable delay in your letter being received followed by my absence from the office. In view of the above circumstances, I trust that you will accept the late filing of this letter. Please note that whilst the Respondent has considered the lengthy application made by the Appellant, the Respondent objects on the following grounds: 1. The Grounds of Appeal have clearly been submitted outside the 42 day time limit. 2. It was a unanimous decision of a competent Tribunal on 17 February 2004, that Ms Jackson's application for an order for discovery of the documents she sought, was refused, upon hearing lengthy submissions from both parties 3. The Appellant conceded in her submissions at the hearing on 17 February 2004, that the Respondent had disclosed all documents upon which it intended to rely in accordance with the earlier Order but she believed there were further documents in existence. It is submitted that the disclosure which the Appellant is seeking is wholly disproportionate to the issues of the case and is not relevant so far as the Appellant's claims are concerned. Furthermore, there is the issue of privilege. 4. The Appellant notified the Respondent of her intention to appeal in April 2004, but failed to lodge her grounds of appeal to your office until approximately one year later. 5. It is noted that the Appellant suffered a fractured ankle in April 2004 and was in plaster for 12 weeks. However, with respect, this should not have prevented the appellant from lodging her appeal within the stipulated time limit and indeed it is noted that the Appellant continued to correspond with the Tribunal on a regular basis following her accident. 6. As the appellant states herself, she is a barrister of 30 years standing, specialising in Labour law research and practice and as such, it is submitted that the appellant should be fully aware of the time limit and procedure for lodging an appeal. No good excuse for the delay has been shown by the Appellant. 7. The grounds of appeal do not clearly identify the point of law relied upon and as such, if the appeal is allowed despite its late submission, clarification would be required of the grounds of appeal"
. This letter is exhibited to the Claimant's Affidavit in which she essentially makes an interim application or contends that this letter was an interim application under Practice Direction Rule 4.[18]With respect, that is, a misunderstanding. The Notice of Appeal is the subject of detailed rules and a detailed Practice Direction and is not overridden or displaced by the Practice Direction relating to interim applications. If this were to be held to be a Notice of Appeal, it is still out of time and discretion would still have to follow. There is no explanation as to why, when the Claimant instructed the solicitors after her fall, the letter was not written before it was, particularly since the Claimant, from her undoubted vantage point of being experienced in employment law, reminded those solicitors of the deadline for the submission of a Notice of Appeal.[19]I bear in mind that an approach to the expiry of deadlines which might be of assistance in the judgment of the Court of Appeal in Schultz v Esso Petroleum Ltd [1999] IRLR 488 CA, which indicates that just because it was possible to submit here, for example, a Notice of Appeal before the Claimant's tragic fall, does not mean that it was possible to submit it during the time scale. In such circumstances, focusing on the end of the relevant period is going to be an important aspect of the task in determining whether time should be extended. Nevertheless, the Claimant did place her case in the hands of the solicitors for the purpose of registering an in-time Notice of Appeal. I do not understand the solicitors' letter saying that they were not instructed to act for her in respect of her appeal as being that they did not have instructions to start the process going. Thus, it seems to me that even if this were a properly constituted Notice of Appeal, and it was not, then there is still no explanation as to why those solicitors did not put it in on time.[20]Whilst my judgment will obviously be a great disappointment to the Claimant, who has presented her case carefully to me today, she can take heart in the fact that she still has the substantive merits hearing ahead of her and she will be able to put those issues before the Employment Tribunal. Given that I do not regard the prospects of success of this appeal, if it were to be allowed to be heard, as high, I have no doubt that justice has been done in this case in accordance not only with the rules of procedure but also of the European Convention on Human Rights.[21]The appeal is dismissed.