Desmond v Cheshire West And Chester Council HQ (Practice and Procedure : Time for appealing) [2012] UKEAT 0007_12_2006

EAT
Desmond v Cheshire West And Chester Council HQ (Practice and Procedure : Time for appealing)
[2012] UKEAT 0007_12_2006 · 2012-06-20
[1]This is an appeal from a decision of the Registrar given on 2 March 2012 not to allow a Notice of Appeal to be registered. The parties are Mr Vincent Desmond, the Claimant, and Cheshire West and Chester Council HQ, the Respondent. Background[2]The Claimant, who is a member of the Bar, represented himself. The proceedings consist of Judgments of Employment Judge Shotter and members, sitting at Liverpool, in respect of a claim for unfair dismissal, sent with Reasons to the parties on 11 April 2011. The Tribunal dismissed the Claimant’s claim for unfair dismissal, upholding the Respondent’s case that he was dismissed for gross misconduct not unfairly and not contrary to any established procedures. He was dissatisfied with that and sought to appeal, but he was out of time.[3]He also sought a review. That was dealt with by the same Tribunal, sitting on one day and another day in chambers. The Claimant appeared, and Mr Christopher Taft has represented the Respondent throughout. The formal finding by the Tribunal was that the request for a review on the grounds, in part, of new evidence, and other matters, was received on the 15 th day after the Judgment, therefore was one day late. The Tribunal held it did not have jurisdiction to consider the application because it was a day out of time and would not extend it.[4]I am not sure that that is the correct analysis of what in fact occurred. An application for a review would be considered on a preliminary basis by the Judge alone, and, unless she formed the view that the case had no prospect of success, it had to be reviewed. In form, this is a refusal to consider the application for a review because it was out of time; there plainly was a three‑person consideration of the application, but it was focussed entirely on time. Whatever it was, the six‑page Judgment rejected the application, having considered all aspects of the Claimant’s out‑of‑time application, and that Judgment is the subject of the would‑be appeal.[5]The Claimant left everything to the last minute; closing time for the submission of a Notice of Appeal, with all of the documents, was 3 January 2012. The EAT was closed for the New Year Bank Holiday on 2 January, but that is not important, because it was not necessary to extend the 42‑day deadline. The Registrar called for submissions because the material was short of at least one document, which was the claim form. As it happens, the Registrar focussed on that but sent material relating to what was a missing Judgment . From the file it is clear that the accompanying documents that should have been with the Notice of Appeal omitted the Judgment and the claim form; and Mr Desmond, having seen this, accepts that that is the position. The principle is the same, however, in that critical documents were missing. The Registrar summarised the position in the following way:
“The appellant states that the appeal must have been lodged in time because a link to the internet was sent to the EAT on 2 January from which the EAT could have downloaded the ET1. However the EAT web pages state ‘A document is not validly lodged by sending us a link to its location’. There are a number of reasons for this policy including the integrity of the government internet system and the fact that if not accessed immediately, the content of the link may be changed or amended. The appellant states that he did not know of this at the time. However as he was working with his friend who was a computer expert, it seems to be an elementary first step to consult the EAT web pages. He seeks to argue that the fact that the EAT staff were received [sic] the link was a delivery of the document. This is not the case as a link is a notification that a document is available if the recipient wishes to retrieve it. The link sent by the appellant (document attached) carries a warning ‘If you were not expecting to receive any files, please use caution before downloading anything to your computer’. An appeal is not delivered to the EAT by informing the court it is in another place to be collected, whether materially or electronically.”
[6]Attached to the Judgment is a message by internet from TransferBIGFiles dated 2 January at 16.40, and it says this:
“’A file has been sent to you! You have been sent one or more files through the TransferBIGFiles.com service. If you were not expecting to receive any files, please use caution before downloading anything to your computer. Go to my download page >> https://transferbigfiles.com/... JUDGMENT 1.pdf · JUDGMENT 1.pdf (link expires Saturday, January 7, 2012, 10:30 AM CST) See us on Facebook and Twitter TransferBIGFiles.com makes it easy to share files, pictures, movies and more with family, friends, co-workers and customers! Signup for a FREE account – Send large files to anyone, see transfer history and more.’ This email was received from the INTERNET and scanned by the Government Secure Intranet anti-virus service supplied by Cable&Wireless Worldwide in partnership with MessageLabs. (CCTM Certificate Number 2009/09/0052.) In case of problems, please call your organisation’s IT Helpdesk. Communications via the GSi may be automatically logged, monitored and/or recorded for legal purposes.”
[7]A similar email was received by the EAT, but instead of the word “Judgment” there is “ET1”, and it is common ground that the file was the ET1. The Registrar therefore refused to register the appeal and refused to exercise discretion. The Judgment and the ET1 were not lodged, although other papers were. The legislation[8]The relevant provisions of law and practice are set out in my Judgment in Muschett v London Borough of Hounslow [2009] ICR 424 . Since then the Court of Appeal decided Jurkowska v Hlmad Ltd [2008] ICR 841 , and I decided Westmoreland v Renault UK Ltd UKEATPA/1571/08, which relates to the effect of the EAT Rules on internet communications and attachments. In Miller v Lambeth Primary Care Trust [2011] EWCA Civ 722 , relied on by both Mr Taft and Mr Desmond in this case, the Court of Appeal approved the Judgment I gave setting out the difficulties faced by the EAT in a huge number of defective Notices of Appeal being lodged by people at one minute to midnight. When they do that they have to expect that something may go wrong, and, were it not for the sedulous treatment by case managers here of incompetent appellants, many would fail on a technicality. As I said in Miller , if you put your Notice of Appeal in with a week to spare and something has gone wrong, it can often be rescued, but not if you do it on the last day.[9]The material was not lodged in the EAT until after 4.00pm on day 41 and therefore is treated as day 42. As it happened, the whole of the material was accepted by the EAT, but that was by then six days out of time. As both Mr Desmond and Mr Taft accept from the Judgment by Sedley LJ in Jurkowska , this is an unforgiving regime, and people who leave things to the last minute should not be given mercy when they encounter difficulties that could be expected to arise. The Registar directed herself by reference to all of the relevant authorities. The appeal[10]I heard evidence from the Claimant, upon which he was cross‑examined, and he has given very frank answers. He is unsophisticated in computers; he had taken steps, albeit very close to the deadline, to scan the documents he needed for this appeal; he knows the deadlines; he is a lawyer and has some experience in the Employment Tribunal, as a result of this case anyway; he knows he has failed in the Employment Tribunal jurisdiction because of his own casual relationship with Father Time and frankly accepted that he knew the deadlines and their importance; he also knew that this is a harsh regime. He was at a friend’s whom he had gone to socially and for assistance, and decided to send this material to the EAT, which he did.[11]As is clear from the EAT website, large files cannot be accepted, he was given automated responses by the EAT (it being recalled it was a Bank Holiday) saying the files were too big, and with the help of his friend he was able to get in touch with an organisation called TransferBIGFiles. Relying on the facility offered by this service whose name says it all, he knew that he could TransferBIGFles – that is, the ones that had been rejected by the EAT, the Judgment and the ET1 – to the EAT in this way. The method his friend advised him about would ensure delivery. When he sent these two documents he got a notice saying:
“Your transfer has been sent! Your transfer has been sent to the recipient(s). This receipt provides you access to the download page and a reminder of when your files are set to expire.”
[12]I accept his evidence that when he received this on day 41 he knew that his ET1 and Judgment had been sent. He went further; he was assured that it had been received by the EAT, even though there is a notice given to him on a page that allows him to download it himself. It says this:
“Report Abuse Important: Please exercise extreme caution prior to downloading any files to your computer. You should only download files when you know who sent them and what they contain. TransferBigFiles.com does not scan files or have any knowledge of their contents. Report Inappropriate/Abusive/Copyrighted Content”
[13]Nevertheless, he was satisfied that the material that he could not get to the EAT because of its size had got there. The way in which TransferBIGFiles operates is to keep remotely, electronically, a large amount of data so that you do not have it on your own computer and so that other people – the illustrations here are family and friends – can see large files of photos and movies quite easily. The problem for the Claimant was that the EAT website has the stern warning that a document is not validly lodged by sending the EAT a link to its location. He did not see this, as he should have.[14]The other stern warning given to potential appellants at the EAT is that you should check if you have sent material electronically. Mr Desmond got in touch with a case‑handler at the EAT as soon as was practicable (he thinks the first day it was open, which was 3 January, or it might have been 4 January). There is correspondence provided by officers at the EAT on 4 January. I accept he rang the EAT at the first opportunity to check the matters were going through. Discussion and conclusion[15]Arguments have been addressed to me drawing attention to three authorities that deal with electronic (that is, email and fax) communications: they are Patel v South Tyneside Council and Ors UKEAT/0917/11, Yellow Pages Sales Ltd v Davie [2011] UKEAT/0017/11 and Tyne & Wear Autistic Society v Smith [2004] UKEAT/0652/04. It seems to me the Claimant’s arguments that these do not apply are to be preferred, for none of them deals with the situation where there has been presented to the EAT a document that is accessible. On behalf of the Respondent Mr Taft contends that what has happened here is the equivalent of a letter being sent to the EAT by a would‑be appellant saying, “My Notice of Appeal and the supporting documents can be found in a carrier bag on Blackfriars Bridge”, and there is no obligation on the EAT staff to go out and retrieve it.[16]That, of course, is a very strong image but does not fit the particular problem here. The EAT’s Rules are clear: had Mr Desmond looked more carefully at the website, he would have seen that TransferBIGFiles would not be the way in which the EAT would accept a Notice of Appeal, because it specifically says it comes from a third party. This is not a third party in the usual sense of a solicitor acting for a party sending an attachment that simply has to be clicked and opened, because what is required is an officer of the EAT to click to go into the TransferBIGFiles website – it is through the www. connector – and there to find, albeit quite easily, the Judgment and the ET1. The reasons given by the Registrar for not accepting this are cogent because of the contamination that is possible.[17]However, more thought needs to be given to the problem of oversized documents. Since electronic communication is acceptable, indeed desirable, there needs to be accommodation for electronic communications that are too big. To his credit, Mr Desmond found one, and in ordinary communications on a family level it would be perfectly acceptable, but the EAT direction on the website is clear. Mr Taft is correct that a document that is available to be found on a website – not the EAT’s – is not properly lodged at the EAT as required, and therefore the Judgment and the ET1 were both served out of time. It is surprising that a 20 page Judgment is too big for the EAT mailbox but the problem is that scanning such a document radically increases its megabytes, as happened here.[18]The question now is: should discretion be exercised in this climate, which requires exceptional cases? I have heard Mr Desmond and accept the facts as he presents them to me. He only has himself to blame for leaving this so late and for there to be glitches in the system, but he was entitled, if he had not seen the notice on the EAT website, to be content that TransferBIGFiles was the solution to the transferring of files too big for the EAT to accept, and TransferBIGFiles’ representation to him that the document had been sent, to know that everything was in order. When in fact the EAT notified him in due course that documents were missing, he acted promptly; and so I will exercise discretion in the exceptional circumstances as he has presented them to me, which is in a broader way than were presented to the Registrar.[19]I heard Mr Taft’s submissions on Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 , but he made no submissions to me about the underlying merits of the appeal, a point that would be available to him under the Judgment of Sir Christopher Staughton. All he said was that Mr Desmond has a history of leaving things very late, which I agree with, but I have not gone into the merits. Mr Desmond submitted the case has merits. As I pointed out to him, this is an argument that would be, if at all, forthcoming from a Respondent resisting the exercise of discretion, and it has not. Mr Taft does not say the case has no merits whatever; I am not required to form a view of it in the exercise of my discretion.[20]I allow this appeal. This case will now go into the sift. Postscript[21]I subsequently rejected it under rule 3(7).