MR FRANCISCO J SOLANI TIRADO v ST GEORGE’S HEALTHCARE NHS TRUST [2005] UKEAT 0669_05_2809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0669_05_2809Case No Appeal No. UKEATPA/0669/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR FRANCISCO J SOLANI TIRADOAPPELLANTST GEORGE’S HEALTHCARE NHS TRUSTRESPONDENT
Before
His Honour Judge Peter ClarkDate 28 September 2005
[1]APPEARANCES For the Appellant MR F J SOLANI TIRADO (The Appellant in Person) For the Respondent MR DAVID WIDDOWSON (Solicitor) Messrs Bevan Brittan LLP Solicitors Fleet Place House 2 Fleet Place Holborn Viaduct London EC4M 7RF SUMMARY Practice and Procedure Appeal against Registrar's refusal to extend time. Appeal lodged 4.25pm on last day out of time. No good excuse for delay shown. Appeal dismissed. HIS HONOUR JUDGE PETER CLARK This an appeal by Mr Solani Tirado against an order made by the Registrar and sealed on 18 July 2005 refusing his application for an extension of time for appealing against a judgment of the London (South) Employment Tribunal (Chairman Professor Rideout) promulgated on 7 April 2005, dismissing his claim of Unfair Dismissal brought against his former employer, the Respondent St George's Healthcare NHS Trust.[2]At the Tribunal hearing held on 10-11 March 2005 the Claimant represented himself. However, in his Originating Application dated 2 February 2004 he named as his representative Abercorn Solicitors. I have been referred to a letter from that firm to the Employment Tribunal dated 20 October 2004 asking for correspondence to be directed to those solicitors. However, Mr Solani Tirado has in turn referred me to a letter from the Employment Tribunal dated 17 February which is addressed to him personally at his home address enclosing a copy of a Case Management Order made at a hearing on 11 November 2004. Because it arises as an issue in this appeal I should deal with the question as to where the judgment of the Rideout tribunal ought to have been sent.[3]Rule 60(1) of the Employment Tribunal Rules of Procedure 2004 provides for notices. Sub rule 4H provides that in the case of a notice or document directed to a party:
"(1) the addressed specified in the claim or response to which notices and documents are to be sent or in a notice under paragraph 5, is the address to which the documents should be sent."
Sub-rule 5 provides:
"A party may at any time by notice to the Employment Tribunal office and to the other party or parties… change the address to which notices and documents are to be sent or transmitted."
It seems clear to me that there was some confusion as to whether or not those solicitors continued to act for the Claimant, particularly in circumstances where he represented himself at the hearing on 10/11 March.[4]However, it seems to me essential that Rule 60(5) is complied with. I have asked Mr Solani-Tirado for a copy of any written notice of change of representative under that Rule and he has not produced one to me. In these circumstances I am not satisfied that the Rule was complied with and therefore see no fault in the Tribunal addressing a copy of the judgment to the solicitors, Abercorn.[5]The Rideout Tribunal's substantive Judgment was sent on 7 April. A copy went to the Respondent's solicitor and to the Claimant's solicitor, Mr Wilkins, of Abercorn's. I see from a letter produced by the Claimant from Mr Wilkins, that he received a copy of the Judgment on 8 April and forwarded it to the Claimant on 21 April, under cover of a letter which advised the Claimant that if he wished to appeal to the EAT he must do so within 42 days of receipt at his office, i.e.8 April. That advice was not strictly correct. Following a period of uncertainty on the authorities the Court of Appeal has now definitively decided that the time for appealing to the EAT runs from the date on which the Employment Tribunal Judgment is sent to the parties, i.e. 7 April in this case. See Gydinia American Shipping Lines v Chelminski [2004] IRLR 725 , upholding, among other EAT decisions, Sian v Abbey National plc [2004] IRLR 185 (Burton P presiding). It follows that the last day for lodging the appeal was 19 May 2005, and not the 28 May as Mr Wilkins, in my view, wrongly advised the Claimant in his letter of 21 April.[6]The Claimant did lodge his Notice of Appeal on 19 May. However he did so, according to the EAT receipt, by hand at 4.25pm on that day.[7]Paragraph 1.8.2 of the EAT Practice Direction issued by Burton P on 9 December 2004 provides:
"When a date is given for serving of a document… the complete document must be received by the EAT… by 4pm on that date. Any document received after 4pm will be deemed to be lodged on the next working day."
[8]Thus, pursuant to that practice, Mr Solani Tirado's Notice of Appeal was date-stamped the following day, 20 May, one day out of time.[9]Invited, in these circumstances, to apply for an extension of time for appealing, the Claimant contended by letter received by the EAT on 1 June that his appeal was lodged within time; the Tribunal Judgment, he asserted, having been sent to the solicitor who, was not his representative at the time. I have earlier dealt with the importance of serving Notice of Change under Rule 61(5) of the Employment Tribunal Rules. That letter was nevertheless treated as an application for extension of time and the Respondent was asked to respond. By letter dated 15 June, solicitors for the Respondent replied, opposing an extension. The Claimant was invited to make any final submissions in reply, within 14 days, by a letter from the EAT dated 16 June. None appears to have been received within that time scale and the Registrar then made her order.[10]Mr Solani Tirado has produced to me a letter from the EAT addressed to him in response to his enquiry and dated 14 March 2005, that is, immediately after the Rideout Employment Tribunal hearing, at which the result was announced, enclosing a copy of the EAT Practice Direction made on 9 December 2004. In my judgment he was thus aware of the time limit and how it was to be calculated. Paragraph 1.8.1 provides:
"For the purpose of serving a valid Notice of Appeal under Rule 3 and paragraph 3 below, when an employment tribunal decision (now judgment) 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, i.e. 42 days later. "
[11]So that in the present case the Notice of Appeal must be received by 4pm on Thursday 19 May. The position therefore, it seems to me, differs from the circumstances in Peters v Sat Katar Ltd [2003] IRLR 574 , where the Court of Appeal held that the information pack then provided to litigants did not advise them to make enquiries if no acknowledgment of a posted Notice of Appeal had been received. Further, as the Registrar pointed out in her Reasons for refusing to extend time in the present case, the booklet issued by the Employment Tribunal and sent out with each judgment, informs parties of the 4pm cut off in the EAT. It may well be as Mr Solani Tirado told me that when his solicitor wrote to him on 21 April he did not enclose with a copy of the Rideout Tribunal's Judgment, a copy of the booklet sent out by the Employment Tribunal. If so, that is a matter between the Claimant and his solicitor.[12]Mr Solani Tirado argues in support of his appeal against the Registrar's[13]The EAT time limits must be strictly observed. See United Arab Emirates v Abdelghafar [1995] ICR 65 , approved in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 (Court of Appeal). Potential appellants should not leave it until the last minute; else they run the risk of finding themselves time-barred. I am satisfied that applying the EAT Rules and Practice Direction, this appeal was out of time, albeit by only one day. The question then, as Mr Widdowson submits, is whether the Appellant has provided an honest explanation amounting to a good excuse for the delay. In the present case, in my judgment, no good explanation is proffered. There is no excuse. In these circumstances I see no reason to differ from the view taken by the Registrar. This appeal fails and is dismissed.

order

(1) That nowhere in the Practice Direction does it state that the cut off will be 4pm. I cannot accept that submission. Paragraph 1.8.2 in my view is clear. "Documents received after 4pm will be deemed to lodge on the next working day." And that provision means precisely what it says. In my judgment it is plainly spelled out, reading paragraphs 1.8.1 and 2 together, that the Notice of Appeal in this case must be lodged by 4pm on 19 May.(2) I am told that the reason why the Notice of Appeal was not lodged by 4pm on that day, was that the Claimant set off from Wimbledon and it took him 2 hours to travel by train and underground to the EAT on Victoria Embankment. That, it seems to me, is no excuse for failing to put in the Notice of Appeal before 4pm on that day.(3) He maintains that the appeal was lodged in time. I do not accept that submission. Time expired in my judgment at 4pm on 19 May.