MS M C MILLER v LAMBETH PRIMARY CARE TRUST [2010] UKEAT 0943_10_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0943_10_1712Case No Appeal No. UKEATPA/0943/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M C MILLERAPPELLANTLAMBETH PRIMARY CARE TRUSTRESPONDENT
Before
His Honour Judge McMullenDate 17 December 2010
[1]APPEARANCES For the Appellant MS LYDIA MARSHALL BAIN (of Counsel) For the Respondent MR ANDREW ROWLAND (Solicitor) Capsticks Solicitors LLP 1 St George's Road Wimbledon London SW19 4DR SUMMARY PRACTICE AND PROCEDURE - Appellate jurisdiction There was no exceptional reason to exercise discretion to allow a late Notice of Appeal. The Claimant had a draft from her solicitor, knew the deadlines and which documents to lodge, and could have done so on the 42 nd day. Further, the case had no merit. HIS HONOUR JUDGE McMULLEN QC This is an appeal from the decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant two days late. I will refer to the parties as the Claimant and the Respondent. Introduction[2]The appeal itself is an appeal from a reserved judgement of Employment Judge Balogun with members sitting over five days, issued with reasons on 19 May 2010. The Employment Tribunal dismissed the claims of victimisation and unfair dismissal. It dismissed a withdrawn claim of unlawful deduction of wages and it refused to vary, upon review which it conducted, an order of Employment Judge Taylor awarding the Respondent costs of £9,480 on 19 January 2009.[3]The Claimant seeks to appeal against the second judgment. It is true, as Mr Rowland, Solicitor who appears on behalf of the Respondent contends, that time for appealing against the costs order began on 18 January 2010. Nevertheless there is a subsisting judgment of the Employment Tribunal in relation to a review and that would be susceptible to appeal on the limited grounds of whether there was an error of law in failing to vary the order once the review was conducted but of course the substance would not change.[4]Nevertheless, for the purpose of this appeal I will treat the grounds of appeal against the costs order and the substantive order of the two tribunals as emanating from the later date. The Registrar rejected the appeal as being out of time. The legislation[5]The relevant provisions of law and practice are set out in my judgment in Muschett v London Borough of Hounslow [2009] ICR 424 . Since that date the Court of Appeal has decided Jurkowska v Hlmad Ltd [2009] ICR 848 and I have decided a number of other judgements including Westmoreland v Renault UK Ltd [2009] UKEATPA/1571/08. The Court of Appeal recently in Harper & Anor v Hopkins [2010] EWCA Civ 1246 expressly approved my approach to the practice and law in these appeals; effectively this is a fresh hearing. The Appeal Tribunal requires a Notice of Appeal and all supporting documents as prescribed in the Practice Direction 2008 to be lodged within 42 days. The Practice Direction indicates what documents must be included and the Practice Statement 2005 makes clear that these are prescriptive provisions and there is no special treatment for litigants in person. An appeal lies to a Judge from the Registrar. The Registrar's Direction[6]The Registrar directed herself in accordance with the relevant authorities which she set out in her reasons attached to the order she made. She made the order on 26 August 2010 having received written submissions and evidence from the parties. The Registrar said the following:
"The notice of Appeal has been lodged 2 days out of time and by virtue of Rule 3 of the Employment Appeal Tribunal Rules 1993 as amended 2004 it is the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days of the date the written reasons for the judgement or an order of a tribunal were sent to the parties. The appellant applies for an extension of time in which to appeal a decision of the employment tribunal promulgated on 19th May 2010. The final date for appeal was the 30th June 2010. The appeal was received on the 1st July but it was not properly instituted and was deemed complete on the 2nd July 2010. She states that the reason for the delay was that she was seeking advice from her solicitor but the reality appears to be that she considered her solicitor was insufficiently supportive in respect of an appeal. Dissatisfied with her solicitors, she sought advice from the solicitors at a law centre but clearly she did not qualify for their assistance. The respondents point out that she is not a fresh appellant. She has lodged two previous appeals at the EAT and has been conducting litigation against this respondent since at least 2004. Although the appellant suffers from dyslexia this is not evidenced by her cogent written presentation skills. She produces some old assessments but she clearly has no difficulty in producing well reasoned argument in typed copy. It is not clear why her dyslexia should account for any delay and nor does she show that it does. It has not hindered her throughout this lengthy litigation. She is not currently represented but this is true for many appellants at this court as legal assistance is rarely available. However, she has throughout had the benefit of legal advice and it is irrelevant that the judgement and written reasons were sent to her solicitors. She was notified promptly of the result. She was fully aware of the time limit. Her solicitor actually drafted a notice of appeal. She could have followed his advice and filed the appeal in good time. She however wished to draft her own appeal. She only appears to have checked on the 29th June that she had all the required documents for her appeal. She claims it is the fault of her solicitor in not supplying her with documents. She does not appear to accept any responsibility that she only requested these documents on the penultimate day. She does not produce any corroboration from her solicitor."
The Claimant's case[7]The Claimant gave evidence before me upon which she was cross-examined. The burden of her evidence is that she is dyslexic. I accept that. I have seen reports. I know dyslexia affects not simply, in the common understanding of it, ability to deal with words, but also organisation skills. There is no dispute that the Claimant has demonstrated that.[8]The Claimant told me that she had had difficulties with her previous solicitor who was operating on a no-win-no-fee basis. That caused Employment Judge Taylor to award costs because of the fault of the solicitor. Nevertheless, she was still in the hands of this solicitor for the first 5 weeks of the 42 day period up to 24 June 2010. On that date she realised she was going to have to file a Notice of Appeal herself. I invited her evidence to focus upon the period following the meeting with the solicitor on 24 June when it was clear she was taking the papers. A week earlier she had a form, drafted by her solicitor. She had also submitted a draft to him which I have not seen. Mr Rowland submits that the document which I have seen is capable of being an appeal and I agree. She did not take advantage of that. Discussion and conclusion[9]I accept Mr Rowland's depiction of the Claimant as seeking to obtain a counsel of perfection. For six days, with assistance from a friend, she attempted to put together the Notice of Appeal which appears now. It was lodged validly on 2 July 2010 because certain documents handed in on 1 July 2010 were incomplete. But the deadline was 4pm on 30 June 2010 which the Claimant missed.[10]She is an experienced litigator. I have heard her case, the President has heard her case and she is experienced in Employment Tribunal proceedings. Her evidence to me was clear. She knows the deadlines, she knows the importance of the documents to be attached to a Notice of Appeal albeit hitherto she had been acting with professional help. She had not drafted a Notice of Appeal herself before but she knew what was to be involved.[11]On 30 June 2010 she attended upon her solicitor who kept her waiting. She was looking for documents to do with the part of the appeal on the costs order. These, I hold, are not essential documents for the purpose of lodging a valid Notice of Appeal. She could have lodged the Notice of Appeal without them, they are not the prescribed documents. By 3:30 on that day she was in a position from her solicitor's office to lodge the Notice of Appeal and did not do so and there is no explanation given to me as to why that date slipped away.[12]An analytic approach is to be taken to these cases and pragmatically, having invited the Claimant to focus attention on the period from, let us say, the date of the solicitor's draft to her, I am prepared to accept that she was in the hands of this now highly criticised solicitor and waiting for something to be done.[13]As is clear from Shultz v Esso Petroleum Company Ltd [1999] EWCA Civ 1015 intense scrutiny is given to the last period. In this court most Appellants who fail before the Registrar fail because they leave to the very last moment the lodging of a Notice of Appeal. Here this was a day late but there are cases where people leave it to the last day just in time and still fail.[14]About 600 cases a year fall into the category of cases which are not properly instituted because the party does not lodge the relevant documents. Fortunately, as was demonstrated in this very case, case managers in this court are helpful and offer prompt information to a party about the content of the relevant materials. But if they lodge the papers on the very last day there is no time for anything going wrong and that is what happened. Of the 580 cases about 520 are lodged with sufficient time between the lodging and the deadline to enable corrections to be made, but about 60 do not. These are added to those which are, as here, completely out of time as no document has been filed in time. The Registrar deals with hundreds of such cases. Between five and 10 a week come back as appeals from her under rule 21 to a Judge, as here. The success rate is not high. It is not uplifting to see how many appellants fail to follow the clear directions, and fail to lodge the basic documents, which are simply the Notice and grounds of appeal, the claim, the response, the judgment and the reasons. A very high proportion involves litigants who take no step until day 42. It may be human nature to leave difficult decisions till the last moment, but it is a high risk strategy in this court. As the Court of Appeal has said, this is an unforgiving regime and the Appeal Tribunal is entitled because it has a very generous time limit to enforce its deadlines firmly. Far too much time and expense of case managers, the Registrar and Judges is taken up with those who do not read the rules, and with unmeritorious appeals for more time.[15]I have been asked by Mr Rowland, in his written argument, to pay attention to the merits of the case and I do. This case has none, and it seems to me I could operate on the basis provided Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 which is to say there is no point in breathing life into a case which is bound to fail.[16]I also regard it as important that there may be issues relating to the timing of the appeal against the costs order but at the moment that is not in the forefront of my mind. I would be doing the Claimant, in the light of her disability, no service by breathing life into this case. Her counsel, Ms Bain who has been involved with her in previous proceedings in this court has said everything which could be said in order to persuade me to exercise the discretion but there is nothing in this case which is so exceptional for me to do so. This appeal is dismissed.