MIDLAND PACKAGING LTD v MRS S CLARK [2005] UKEAT 1146_04_1402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 1146_04_1402Case No Appeal No. UKEATPA/1146/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MIDLAND PACKAGING LTDAPPELLANTMRS S CLARKRESPONDENT
Before
Mr Justice BurtonDate 14 February 2005
[1]APPEARANCES For the Appellant MR TAYLOR (Representative) For the Respondent MR MORTIS (Representative) SUMMARY Practice and Procedure Finding that Notice of Appeal (containing 21 pages including necessary documents), whose faxing to the EAT had commenced prior to 4.00 pm on the 42 nd day but had not been completed (and not printed out at all) until after 4.00 pm (printing commencing at 4.06 pm) was not out of time. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the proposed Appellant, Midland Packaging Ltd, against a Decision of the Registrar on 21 December 2004, that the Notice of Appeal, to which I shall refer, against a Decision of the Employment Tribunal, was out of time, and that an extension of time was refused.[2]The Appellant has today been represented by Mr Taylor, and the Respondent by Mr Mortis, and the issue has been considerably narrowed down, and, indeed, the dispute between the parties similarly narrowed down, in the course of argument before me. The judgment of the Employment Tribunal, against which an appeal is sought to be made by the Appellant, was the unanimous decision of the Employment Tribunal at Birmingham, after a hearing on 19 May 2004, in Reasons sent to the parties on 22 June 2004, that the Applicant was unfairly dismissed.[3]The Notice of Appeal raises issues which the Respondent does not seek to suggest are wholly unarguable, in the sense that Mr Mortis does not make it part of his submission today that, in accordance with the dictum of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 , at paragraph 23:
"…if it is plain that the appeal has no prospect of success that must be a matter which should be taken into account. There can be no point in giving an extension of time for an appeal which is bound to fail."
[4]Although, of course, if this appeal goes further, it will require to be sifted, and it may be that a view might, at that stage, be taken under rule 3 that there are no reasonable grounds for the appeal, I do not consider that question today, because, as I have indicated, it is not before me; nor have I addressed it at all, so that the issue is entirely open. I simply say that it has not been argued before me today, and, therefore, no conclusion is reached as to the arguability of the appeal, one way or the other.[5]The question, then, is one wholly of principle, arising out of the importance which this Appeal Tribunal places, as do other courts, upon compliance with time limits. This is not simple a pernickety approach by the courts. Compliance with time limits has very considerable importance in relation to the bringing of appeals. If an appeal is out of time, then the question as to whether it can go forward becomes one of jurisdiction; albeit, of course, there is a discretion to be exercised, on the face of it there is no jurisdiction in an appeal court to hear an out of time appeal. Therefore the public is entitled to be protected from cases going forward which are out of time, and cluttering up to the courts. There is still life in the old latin maxim, sit finis litium , and a successful party below is entitled to assume, once the time limit is up, that the decision below remains unchallenged and can be enforced and acted upon.[6]The period of 42 days in the Employment Appeal Tribunal is an extremely generous one. It is three times the period allowed for a Notice of Appeal in the County Court or in the High Court; and in Sian v Abbey National plc [2004] IRLR 185 , I said, in relation to that case:
"(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."
[7]The facts in this case are that the Notice of Appeal, together with the required additional documents (the Extended Reasons of the Employment Tribunal and the ET1 and ET3, the claim and response before the Employment Tribunal), were sent through by fax on 3 August 2004. The time-limit for the service of a Notice of Appeal expired at 4.00 pm on 3 August 2004. It appears, although I am not able to take this matter into account, because the evidence is so scanty, that it is suggested that there had been an attempt by the Appellant to fax through the Notice of Appeal earlier that day. There is a suggestion that there was, or may have been, something wrong with that fax machine; and, in any event, it is suggested that there was something wrong with the recording of the machine, so that, in fact, the time clock was in some way wiped, such that there is no record of any such attempt to send the Notice of Appeal. In any event, there is no record of any receipt of the Notice of Appeal. If that was all there was before me, I would be wholly unsatisfied that there was any case that the Notice of Appeal was in time, simply by virtue of an assertion that an attempt was made to send it early on 3 August 2004. What, in fact, occurred is that round about 4.00 pm, and I shall return to this in more detail, the fax was sent.[8]There are authorities on extensions of time, and upon the cases which require to be put forward in order to obtain an extension of time, against the background of the stringent way in which the courts approach that deadline in this Appeal Tribunal. They are United Arab Emirates v Abdelghafar [1995] IRLR 243 , Aziz (to which I have referred), and Kanapathiar v London Borough of Harrow [2003] IRLR 571 , which extended the same stringency to the extended reasons, which, by then, were required to be served with the Notice of Appeal in order to render it valid, as had been applied to the procedure relating only to the Notice of Appeal itself.[9]The new Rules have introduced a requirement that the Notice of Appeal will not be valid unless the claim and response are also part of the Notice of Appeal; and compliance with that new Rule has not been, by any means, total, as I made clear in a Practice Statement, which was pronounced by me on 3 February 2005 in the Employment Appeal Tribunal, indicating that some parties had not been complying with the rule, and that, although leniency would be extended up until that date, it would not be extended hereafter.[10]In relation to this case, therefore, the implications are as follows. First, that if the only reason for which the Appellant was out of time was the non-inclusion or non-delivery of the claim and response, leniency would have been exercised in this case; but equally that, subject to that, leniency is not the approach adopted by this court in relation to late documentation relating to an appeal, and something exceptional is required for there to be an extension permitted. In this case, no explanation whatever is given by the proposed Appellant as to why service of a Notice of Appeal was left until the last minute. "Last minute", in this case, has a very real meaning to it, as is made quite clear in those cases, to which I have referred, relating to the requirement for explanation Abdelghafar , in this Appeal Tribunal, per Mummery P, approved by the Court of Appeal in Aziz , contains the clearest possible advice to litigants and their advisers as to the consequences of delay. At paragraph 28 of the judgment of Mummery P, in Abdelghafar , it says:
"The Tribunal's discretion will not be exercised, unless the appellant provides the Tribunal with a full and honest explanation of the reason for non-compliance." and, at paragraph 29, he said: "
The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the 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 post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period."[11]As I indicated earlier, there is no excuse given by the Appellant or its advisers for waiting until the last minute of the 42 day period. There was, apparently, some kind of preparation for service of the Notice of Appeal as early as 2 June, because the covering letter, under which the Notice of Appeal was eventually served in August, was dated 2 June; and, in the course of explanation, the Appellant's advisers point to that date as indicating that they had indeed started to think about an appeal, even before receiving the Extended Reasons on 22 June, because the decision had been announced at the end of the hearing. Given that that was the case, it makes it even more inexplicable that they should delay until the last minute actually to put in that Notice of Appeal. Mr Taylor has frankly accepted that if this were an application for an extension of time, he would have no grounds to support that application.[12]It is for that reason that I have indicated that the issues have been considerably narrowed in the course of argument, because the question before me is not whether there should be an extension of time, but whether, in fact, this Notice of Appeal should be treated as in time.[13]The documentary position is this. The Notice of Appeal, when faxed, consisted, including a header sheet, of 21 pages. The Notice of Appeal itself consisted of five pages: four substantive pages, and the last page simply with a date and address on it. The next documents that followed were claim and the response, and then, finally, the Extended Reasons. As I have indicated earlier, if the claim and response had been omitted, leniency might have been exercised by the Employment Appeal Tribunal, in the light of the recent guidance in the Practice Statement. In fact they were not omitted, but they simply preceded the Extended Reasons in the bundle which was faxed through, and will have been received by the Employment Appeal Tribunal, consequently, in the course of faxing, prior to the Extended Reasons. The first document being faxed, apart from the header sheet, was obviously the most significant, namely the Notice of Appeal.[14]It is, however, on any basis, clear that the whole document - and possibly not even any more than the first or second or third page of the Notice of Appeal - cannot even arguably have been received by the Employment Appeal Tribunal until after 4.00 pm. There is no specific evidence as to the position at the Appellant's end, other than the race to get to the fax machine, it now having been appreciated that the Notice of Appeal had not previously been sent in time. What there is before me is as follows. First, the Notice of Appeal itself has a fax receipt date and time at the top of each page. The first page of the Notice of Appeal is stamped at 16.06. The second and third pages at 16.07, and the fourth and fifth pages at 16.08. Taking into account the header sheet (although we do not have it in faxed form), which would also, presumably, have been received at 16.06, it would appear that the Employment Appeal Tribunal machine printed out two pages per minute, and started to print at 16.06. On that basis, it would have completed the printing of the 21 pages in a period of ten and a half minutes, concluding at or about 16.16 or 16.17. If the position is, then, that the test is when the fax is printed out by the Employment Appeal Tribunal fax machine, it is clear that even the first page did not get printed out until six minutes after the deadline.[15]The only other documentary evidence is a document called "Transmit Conf. Report". This is, of course, the document which is printed out at the Appellant's end of the communication, and it reads:
"Mode NORMAL Pages 21 Page(s) Result O K "
That, therefore, suggests that all 21 pages had by then been transmitted electronically, albeit not yet printed out, and the time on that document is 16.09.[16]There are two possibilities which I address, which are not, in my view, in the end determinative at this stage. The first is that the clocks, as between the Appellant's fax and the EAT fax, were out of kilter; particularly if the Appellant's fax machine, as is asserted, broke down at some stage during the day, there may be some question as to the timing of the machine. Alternatively, of course, it may be that, if indeed it had broken down and had been restarted, it may make it more likely that the time was correct. I cannot begin to speculate as to that. It may of course equally be that the EAT machine timer was incorrect. I leave aside any questions of incompatibility between the clocks, but simply mention it.[17]The second possibility is that, as would be entirely plausible, the EAT machine could have been busy at that time, and that the documentation could have been received into memory, and sat on the machine for some time before being printed out. Without expert evidence of an electronic kind, that cannot be resolved before me today.[18]Very fairly, Mr Mortis, in the course of argument, accepted that the probability was that the two fax machines were in communication with each other prior to 4.00 pm; and that, electronically, some part of this message had been received by the EAT machine by 4.00 pm. Whether it be one or two pages, one cannot do any more than speculate. He derives this, and I accept and agree with his very fair assessment, from the confirmation report. Leaving aside, as he does, and as I do, the difficulty, if not impossibility, of grappling with the question of the possible differences of clocks, to which I have referred, the existence of a confirmation report at 16.09 suggests that by that time the entirety of the 21 pages of documents had been delivered electronically to the EAT machine, albeit not yet printed out; and so if the entirety of the pages had been delivered by 16.09, the probability is that one or more page had been delivered by 4.00 pm. This was not, of course, the complete Notice of Appeal, not to speak of the complete documentation which is required in order to establish the validity of a Notice of Appeal in the absence of a written explanation as to why such documents are not available, which also would have had to have been delivered in time.[19]The issue then is whether a situation in which a would be Appellant's fax machine is in communication with the EAT fax machine at 4.00pm, and has already sent through, electronically, one or two pages, but not a complete document, is sufficient to amount to lodgment of the Notice of Appeal at the EAT in time to comply with the Rules. It is, of course, very tempting to rely simply upon the date of print out, which is a certain and clear position. It can always be suggested that the EAT machine is erroneous, but, subject to that, to accept the date on a fax document when it is printed out as the date of receipt, would be a very comfortable and clear answer to the conundrum posed by this case.[20]On the other hand, Mr Taylor relies upon analogy with physical delivery. He accepts that it would plainly not be sufficient if the letter had simply been placed in a letter box somewhere in England, to be carried by the Royal Mail; nor would it be sufficient, as Mr Mortis has made clear, if it was being carried by the Royal Mail, on its way to the EAT, any more than being carried by a courier, delayed in traffic. All that is the kind of delay in delivery, which was referred to Mummery P in Abdelghafar , as being coped with by the additionally generous period that this Appeal Tribunal allows.[21]But, what of the situation in which the courier, or the postman, manages to put through the EAT letterbox an unopened envelope, containing all the relevant documents, at 10 seconds before 4.00 pm. Is that not similar to an unread, indeed unreadable, delivery of a fax at the same time? It seems to me that if the fax had been completely delivered before 4.00 pm, electronically and in unreadable form, on the EAT fax machine memory, and not yet printed out, that would be identical to the situation of the unread, unopened Notice of Appeal in an envelope, and I would have had some difficulty, but in the end would have decided that that would mean delivery before 4.00 pm, albeit not in physical form.[22]But in this case, the Appellant needs to go further, because it is quite clear, and I accept Mr Mortis' argument (insofar as it was in issue between the parties, and I do not believe it was) that, on any basis, there was not complete delivery, even electronically, by 4.00 pm of necessary documentation. The most that can have gone through by 4.00pm, even electronically, was some part of the Notice of Appeal itself. And in that regard, Mr Taylor submits, it should be the case that if the document is in the process of being delivered at 4.00 pm, then the completion of its delivery should be accepted. One looks here for analogies of a physical kind. If a courier, or indeed a litigant-in-person, or a solicitor, is in, at 10 seconds to 4.00 pm, the front door of the EAT, and is putting down in onto the counter the first page, but is still struggling to open his or her briefcase for the balance of the documents; or if the courier, or litigant-in-person, or solicitor, has arrived, hands over the first two or three pages but discovers that, in his race up the road, he has dropped some pages, and has to run back to retrace his steps; or is followed by a second courier, the client having realised that two or three pages were left behind when the first courier arrived; or if the document, in a possibly farcical example, is written out on one of those long, rolled-up pages like lavatory paper, that used to be used for fax machines, and the first part of the page has reached the counter, and the rest is still, as yet, unrolled; it appears to me that in all those cases it is right, albeit that I am extremely conscious of the need to protect the public and litigants against delay and non-compliance with deadlines, that, in order to achieve some kind of common sense in the application of deadlines, if a document has started to be produced at the expiry of the deadline, it should be regarded as in time.[23]I say nothing as to what would happen if, for example, there were to be communication by e-mail, and someone was still typing an e-mail, half way through it, at 4.00 pm, and as to whether that would count, but it seems to follow by analogy that such would not be sufficient, in that it is the communication which is crucial, though not the printing out - a printer could be jammed or overloaded. Where the document has in fact been completed , it is in either electronic or readable form, and is in the process of dispatch, and the dispatch has, on the balance of probabilities, started at the time of the expiry of the deadline, in my judgment that should count as good service or lodgment of the document.[24]In those circumstances, I conclude that this is a case in which the Notice of Appeal shall be deemed not to be out of time. No application for an extension of time is therefore necessary. In those circumstances this appeal is allowed.