MR J ZINDA v (1) THE GOVERNING BODY OF BARN HILL COMMUNITY HIGH (2) MR I MARSHALL (3) MRS K WATHEN [2010] UKEAT 1146_09_2907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 1146_09_2907Case No Appeal No. UKEATPA/1146/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J ZINDAAPPELLANT(1) THE GOVERNING BODY OF BARN HILL COMMUNITY HIGH (2) MR I MARSHALL (3) MRS K WATHENRESPONDENT
Before
His Honour Judge McMullenDate 29 July 2010
[1]APPEARANCES For the Appellant MR J ZINDA (The Appellant in Person) For the Respondents MR A FRASER-URQUHART (of Counsel) Instructed by: London Borough of Hillingdon Legal Services Civic Centre High Street Uxbridge UB8 1UW SUMMARY PRACTICE AND PROCEDURE – Time for appealing No exceptional reasons were given by an Appellant for his late submission of a fresh Notice of Appeal under rule 3(8). He failed properly to prioritise this with his other affairs relating to the United Nations and his law degree. Although the Respondent conceded the Registrar erred in law, her decision not to allow the Notice of Appeal out of time was correct. HIS HONOUR JUDGE McMULLEN QC This is an appeal from the decision of the Registrar not to allow registration of a fresh Notice of Appeal, sought to be lodged by the Appellant under rule 3(8) and (9). I will refer to the parties as the Claimant and the Respondents.[2]The appeal itself is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal, chaired by Employment Judge Henry, sitting over some 16 days at Watford on 26 July 2009, following a judgment given on 15 January 2009. The reasons run for 63 pages. The Tribunal dismissed the claims based on race discrimination and victimisation and other matters. The Claimant sought to appeal. He did so in two documents. First, an appeal on 7 September 2009 and then in an updated Notice of Appeal on 6 October 2009.[3]The matter came before Underhill P, who gave directions staying the appeal and seeking further material from the Employment Tribunal. This was forthcoming and on 22 February 2010, in the light of the material produced, the President was able to reach a full conclusion on each of the five main subject matters which were raised in the second amended Notice of Appeal. The President's conclusion was that none of these issues stood a reasonable prospect of success. The letter written by the Deputy Registrar including the opinion of the President referred directly to rules 3(8) and 3(10), a copy of which rules were given as part of that letter. The Claimant had also been sent the Practice Direction at the time of the Notice of Appeal.[4]In accordance with the rules the Claimant sought to raise a fresh appeal. He had a choice, either under rule 3(10) to have a hearing before a Judge, or to institute a fresh appeal and he chose the latter. The fresh appeal should have been served at the EAT by 4.00 pm on 22 March 2010. That is common ground.[5]The Registrar decided that the fresh appeal was out of time and she saw no exceptional reason to exercise her discretion to allow it in time. She addressed the relevant authorities which are Aziz v Bethnal Green City Challenge [200] IRLR 111 and Morrison v Hillcrest [2005] EWCA Civ 437 which indicates that the rules are the same for litigants in person as for others. The rules apply equally to cases under rule 3(8) and (9). She also considered UAE v Abdelghafar [1995] ICR which is the approach required in a case such as this. She gave the chronology as follows:
"The Appellant appears to say that time should run from the date of the receipt of the rejection letter rather than the date on which it was sent. Rule 3(8) is quite specific a fresh notice of appeal must be served 'within 28 days from the date on which the notification given under paragraph 7 was sent to him'. In any event, even if he did two days from the time limit, he still had plenty of time in which to submit a fresh appeal. He sends evidence that he went to Geneva between the 12th and 20th March but this would not have prevented him filing a new appeal either before he went or from Geneva. This is not a distant outpost. He also produces a collage of boarding passes which apparently the Court is asked to decipher. In any event his trip to Asia took place after the expiry of the time limit. Six weeks is a generous amount of time in which to appeal and the Appellant, training to be a lawyer, would be aware how important time limits are. He has produced no reason why he could not have complied with the very generous 28 day limit."
[6]Although she mentions in the passage that 6 weeks is a generous amount of time, it does not affect her approach to the 28 day limit on a fresh appeal, which logically produces an extension of time well beyond the generous period of six weeks initially. So in practice, by seeking to initiate a fresh Notice of Appeal, the Claimant can extend the time for a substantial period.[7]In addition, the Registrar applied herself to Woodward v Abbey National Plc [2005] IRLR 7. It was noted that it was no excuse unless for the entirety of the period, in this case four weeks, the Claimant proved it is impossible to comply. I will come back to that in due course. The facts relating to the fresh Notice of Appeal.[8]The chronology is not disputed. Mr Fraser-Urquhart, appearing for the Respondent, did not seek to challenge the factual basis upon which Mr Zinda asked for the matter to be considered here. So I can take the facts quite briefly. The Claimant received the President's opinion, dated 22 February on 25 February 2010. He at once sought to challenge the opinion and indicated what steps he would take. He is, as explained by the Employment Tribunal, highly articulate. He has many higher degrees and he is currently reading for a law degree. He is experienced in Employment Tribunal proceedings (at least in one) and he was able to lodge a Notice of Appeal and amended Notice of Appeal in 2009 without any difficulty.[9]However, he saw some difficulty in responding to the President's opinion. His first difficulty was when he called Hillingdon Law Centre to seek advice. He was aware that time limits are tight on appeals. He read the notes accompanying the opinion. These are the rules. He said he simply did not understand because they relate to national security. He said it was impossible to start drafting his appeal because he did not know where to appeal, when to appeal and what form of documents to use.[10]He sought legal advice again. Hillingdon agreed to provide some legal assistance but on 3 March said that he needed to apply to the Court of Appeal. He asked Hillingdon where to appeal to from the Employment Appeal Tribunal and they correctly said the Court of Appeal. On 4 and 5 March 2010 the Claimant operated on the basis that he had been told he had 14 days to appeal to the Court of Appeal and he "really panicked". He was in touch with the Administrative Court Office. Reference was given by an officer of the Administrative Office for a form.[11]By 8 March 2010 the Claimant had several things on his mind. He was due to attend a briefing at University College to further his training in Beijing pursuant to bilateral arrangements between the UK and China. He had a hearing at Wandsworth County Court, as he put it, with "one of [his] many creditors". He knew that he had 28 days from the date of the President's opinion to launch a fresh appeal. That was advice he was given by the EAT but he was not convinced that was correct. He thought he had conflicting messages. He said the EAT was issuing misleading advice. He decided he would nevertheless travel as part of his training to take part in a debate at Geneva on 12 March 2010 called the "Model United Nations". He decided that he would take the documents with him and draft his appeal while he was in Geneva. He knew before he left that finding time and access to the Internet would be problematic.[12]He left for Geneva on 12 March and then returned to his home on 20 March. He says this was to change suitcases. He said he was hoping to complete drafting while he was in Geneva and he would be able to post or email the EAT with his appeal on the 21st. But because of difficulties with the Internet he did not allow himself sufficient time. He then went on, having had no sleep at all, to fly via the Gulf to Hong Kong. While in Hong Kong, on 24 March 2010, he submitted the appeal.[13]He tells me that the appeal was written almost in its entirety while he was in Geneva, that is 20 March 2010. He also points out that there is a time difference in Hong Kong of 7 or 8 hours and this also created a difficulty. The legislation[14]The legislation is contained in rule 3(7) to rule 3(10) which provide as follows:
" (7) Where it appears to a judge or the Registrar that a notice of appeal or a document provided under paragraph (5) or (6)– (a) discloses no reasonable grounds for bringing the appeal; or (b) is an abuse of the Appeal Tribunal's process or is otherwise likely to obstruct the just disposal of proceedings, he shall notify the Appellant or special advocate accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the notice of appeal or document provided under paragraph (5) or (6). (7A) In paragraphs (7) and (10) reference to a notice of appeal or a document provided under paragraph (5) or (6) includes reference to part of a notice of appeal or document provided under paragraph (5) or (6). (8) Where notification has been given under paragraph (7), the appellant or the special advocate, as the case may be, may serve a fresh notice of appeal, or a fresh document under paragraph (5) or (6), within the time remaining under paragraph (3) or (6) or within 28 days from the date on which the notification given under paragraph 7 was sent to him, whichever is the longer period. (9) Where the appellant or the special advocate serves a fresh notice of appeal or a fresh document under paragraph (8), a judge or the Registrar shall consider such fresh notice of appeal or document with regard to jurisdiction as though it were an original notice of appeal lodged pursuant to paragraphs (1) and (3), or as though it were an original document provided pursuant to paragraph (5) or (6), as the case may be. (10) Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, an appellant or special advocate expresses dissatisfaction in writing with the reasons given by the judge or Registrar for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the notice of appeal or document under paragraph (5) or (6)."
I set out the relevant practice in my judgment in Muschett [2009] ICR 424 . Since then the Court of Appeal has decided Jurkowska v Hlmad [2008] EWCA Civ 231 , and I have decided a number of cases including Bost Logistics v Gumbley UKEATPA/0013/08. In short the EAT requires that a Notice of Appeal and all supporting documents as prescribed in the Practice Direction to be lodged with the court within 42 days. The effect of the fresh appeal under rule 3(8) and (9) is as can be seen from its wording to take the place of the original appeal. But otherwise all the matters attendant upon a valid Notice of Appeal have to be complied with for the purpose of fresh Notice of Appeal.[15]An appeal lies to a Judge from the decision of the Registrar. I make up my own mind on the material available to me. The Claimant's case[16]In detailed written submissions I read with care and in well presented arguments put before me today, the Claimant asks for the exercise of discretion.[17]I can deal with those together with the response of Mr Fraser-Urquhart on behalf of the Respondents as they arise. The first point relates to confusion as between the advice given by the Court of Appeal Office, the EAT office and Hillingdon Law Centre. I reject that confusion because, as the Claimant says, on 8 March he decided to go ahead knowing the deadline of submitting the fresh notice to the EAT. He never did submit an application for permission to the Court of Appeal. So, what he decided to do on 8 March, by way of submitting a fresh Notice of Appeal within 28 days of the EAT was in fact done albeit two days late. The EAT officer who told him about the procedure at the EAT was correct. Whatever advice was given by Hillingdon did not affect timing of the fresh Notice of Appeal.[18]Secondly, the Claimant contends that he was confused because the rules referred to national security. With respect, Mr Zinda, now into his third year of study of the law, should be able to understand this rule. It is true it applies to the two channels arriving at the EAT, that is a document arising from national security proceedings and a Notice of Appeal arising from ordinary proceedings. The rule is carefully drafted and should cause no confusion. But in any event, the fact is that the Claimant had submitted a valid Notice of Appeal twice to the EAT in September and October 2009. He knew that he was applying to the right place. The Deputy Registrar's letter, together with the President's opinion did not tell him otherwise. He was plainly in the right place to appeal the judgment of an Employment Tribunal. Furthermore, the Deputy Registrar's letter draws attention to the relevant rules. The Claimant was therefore in the right place and he knew by reference to the rules (or he ought to have read them carefully to know) that the fresh appeal was to be lodged here.[19]The Claimant contends that he did not have time to submit the Notice of Appeal. I reject that too. As he told me, almost the entirety of the Notice of Appeal was drafted while he was in Geneva, that is he could have brought it back from Geneva and submitted it while he was in the UK on 20, 21 or 22 March. He chose instead to take the material to the Far East in order to complete it from there.[20]He contends that he was engaged in important matters of his training at the Model United Nations. I in no way underestimate the importance to him, and possibly to others, of his attendance at that meeting. But it was a matter of priority for him to organise. Since he is going to become a lawyer, that is an important factor in his training. He decided he would put the Notice of Appeal behind his attendance in Geneva and his attendance in the Far East. That is a matter for him and he got it wrong.[21]The next matter relates to his understanding of what he had to do. As I pointed out there is a choice available. He could instead have applied for a hearing under rule 3(10) relying on the original Notice of Appeal, come to a hearing where, as is common practice for represented and unrepresented parties, some redrafting and amendment is usually allowed in the flexibility of this 3(10) procedure. But he chose instead to issue a fresh Notice of Appeal.[22]He further relies upon the difference in time. By the time he got to Hong Kong, 7 or 8 hours ahead of the UK, he was already out of time and the effect of the timing was entirely in his favour. If he was writing anything on the 23 or 24 March, he would already be out of time to meet the deadline of 4.00 pm on 22 March in the UK. None of this assists the court, albeit the time difference is in his favour.[23]I see no exceptional reasons, applying as I do the same authorities as the Registrar. I do accept his submission in relation to the Woodward point. As I have made clear in the judgments that I have given this is an error. Mr Fraser-Urquhart asked to deal specifically with the Claimant's detailed arguments against the Registrar's approach, recognised that the decisions that I have made were correct and he would not seek to argue against them. So on that point alone, I am in favour of the Claimant. It was not necessary for him to prove it was impossible throughout the 28 days to put in a Notice of Appeal. This is an open discretion under rule 37, unfettered by the issue of impossibility.[24]Both parties were anxious to tell me about the merits of the case. In certain exceptional circumstances, the merits may be relevant in accordance with the judgment of Sir Christopher Staughton in Aziz . As part of the Claimant's approach to the merits, which he contends are very strong and should allow the appeal, he sought earlier today to introduce new evidence based on what the Respondent was saying in a costs application. I ruled it was not necessary for the hearing before me. These relate to the Employment Judge's response to the present matter when he stayed the case. All this material was before the President when he formed the opinion that the Claimant's case had no reasonable prospect of success.[25]I am able to decide this case without making a decision myself on the merits as Sir Christopher Staunton said, this would be relevant where the case has none at all.[26]Mr Fraser-Urquhart, relying upon, at the very least the President's opinion, submitted this was good evidence that there was no merit in the appeal and the President had given his opinion after seeing the Judge's notes. He will not have seen what the Claimant wishes to draw attention to in the Respondent's submissions on costs. Mr Fraser-Urquhart also reminds me that the fresh Notice of Appeal is very substantially the same as the first and second Notices of Appeal because there is express incorporation of them. Therefore, the opinion given by the President still stands. But I decline to make a decision upon this. It is not necessary for me to consider the merits for the purpose of the exercise of discretion.[27]Mr Zinda is in a better position than many before this court, he being a highly articulate communicator and able to represent himself and demonstrably able to comply with the rules as he has previously shown. In those circumstances, there is no basis on which I should exercise discretion to allow this appeal two days out of time. This is not an exceptional case.