Ahir v Continental Tyre Group Ltd (Practice and Procedure) [2012] UKEAT 1137_11_2803

EAT
Ahir v Continental Tyre Group Ltd (Practice and Procedure)
[2012] UKEAT 1137_11_2803 · 2012-03-28
[1]This is an appeal under rule 21 of the Employment Appeal Tribunal Rules 1993 against two decisions made by the Registrar. In both cases she refused to extend time for a step. In the first decision, 19 October 2011, she refused to extend time within which the Appellant could appeal against a decision of the Watford Tribunal; in the second, she refused an extension of time to appeal against her earlier decision of 19 October, that second decision made on 5 December. The underlying chronology[2]The Appellant brought a case before the Employment Tribunal claiming that he had been unfairly dismissed; other claims that he had made, in respect of race and sex discrimination, were withdrawn by him at the start of that hearing. On 14 June 2011 the Tribunal dismissed his claim. He sought reasons; those reasons are dated as having been sent to the parties on 20 June 2011. The EAT Rules of 1993 , rule 3A(1), provide that time for appealing runs from the date on which a Judgment or order is sent to the parties. If the date of 20 June 2011 was correctly stated, then time expired on 1 August 2011. A form of appeal was put in in a number of email transmissions after 4.00pm on 31 July 2011 – that was a Sunday – but there was no Judgment included in the documents transmitted, nor were there any written reasons for the Judgment of the Tribunal, and nor was there a complete ET3. All of those documents are required by the rules and by the Practice Direction before an appeal is properly instituted; the reason is obvious.[3]The Employment Appeal Tribunal, as is its practice when an appeal is entered that is improperly instituted, wrote immediately to the Appellant to tell him that his appeal documentation was incomplete. That letter was sent on 1 August; it was received by him on 2 August. He made good the deficiency, but not until, effectively, 3 August, thus being two days late. He was therefore required to persuade the Registrar that she should extend time. I shall come to the arguments he used in due course, because those arguments have essentially been repeated and elaborated upon in this appeal to me. She dismissed the application to extend time on 19 October 2011. The rules provide, by rule 21, that there are five days within which an order by the Registrar may be appealed by way of an interim appeal. That also is made clear in the Practice Direction of the Employment Appeal Tribunal. It was not appealed until 2 November; that was 14 days after the decision, and therefore it was 9 days out of time, very nearly twice as long out of time as the time limit itself provides. The appeal[4]The Appellant, however, did appeal the order refusing to extend time to appeal against the decision of 19 October by a letter treated as a Notice of Appeal made within five days of that decision; hence both these decisions now come before me. I shall deal with the cases chronologically by dealing with the circumstances in which the Claimant sought an extension of time in respect of the Employment Tribunal decision first, and then the different circumstances that applied to his request to extend time to appeal against the Registrar’s own decision of 19 October.[5]Although the documents clearly show that at all times until 3 August the Appellant appears to have worked on the basis that 1 August was the latest date upon which he could validly submit an appeal, having considered the position he wishes to question the date upon which the Judgment was sent out to the parties. He relies upon the case of Tasneem v Dudley Group of Hospitals NHS Trust UKEAT/0496/09, in which HHJ Serota QC determined an appeal against a Registrar’s order. The summary provides:
“It is open to a litigant when appropriate to challenge the accuracy of the date recorded on an Employment Tribunal Judgment as to the date when it was ‘sent’ to him. Employment Tribunals have a procedure to ensure that documents are sent on the date stamped upon the document as being the date of sending. In future cases, when requested to do so, the Employment Tribunal should be ready to provide evidence as to those procedures.”
[6]Those words reflect what is said in paragraph 31 of the Judgment. What he told me gave rise to his questioning the date, and thereby feeling that he had been short‑changed in not having what he tells me is his right – that is, to have 42 days within which to appeal – and instead being restricted to some 32 or so days, was this: that he was represented initially by himself, but in April, before the Tribunal sat to hear his case, he found a solicitor with whom he entered into a contingency fee agreement, which provided, amongst other things, that any appeal was not covered by the agreement, and provided that once the relationship covered by the agreement was at an end the solicitor would inform the Tribunal that he was no longer acting as his representative. That solicitor was a Mr Dutton; Mr Dutton represented the Claimant at the hearing. He did not take his name off the record; thus it was that the Employment Tribunal sent its reasons for the Judgment to him. On 29 June, which was a Wednesday, Mr Dutton sent an email to the Appellant:
“Hi Ash Please find the reasons attached. They were apparently sent out on 20 th June but I just got them a couple of days ago. That means we have until 1 st August to appeal.”
[7]Two observations: first, “a couple of days” is unspecific, and I have had no evidence from Mr Dutton, either in person or by statement, or in any other form, that gives greater clarity to that phrase (it is a vague phrase often used by people to mean more than the two days to which “a couple” linguistically refers); second, the email was clear that the closing date for putting in an appeal was 1 August. It was the reference to having received the reasons “a couple of days ago”, which would then take one back to 27 June, a Monday, if interpreted literally, or to the previous Saturday or Friday if some greater latitude were given, but with the timescale still short, that led Mr Ahir to wonder whether the document had indeed been sent out upon the date it said.[8]He argues, in support of a conclusion that the document could not have been sent out on 20 June but must have been sent out later, first by referring to the Tasneem case itself, in which the evidence that the Judge accepted was to the effect that in that particular case the decision may well have been sent out later than the date stamped on it. Thus Mr Ahir was able to make the point that posting on the stamped date did not inevitably happen, and the date on the document was not inevitably faithful to the truth. Second, whenever he had had communications from the Tribunal the communications were received a day after they had been sent, if on a weekday. That he demonstrated by showing documents that had been received by the Respondent that showed a date of receipt a day after the documents had been sent by the Tribunal. Thus, he says, there is with this Tribunal a regular pattern of documents being received a day after they are sent, so that one may conclude that if they are received on a particular date, they must have been sent the day before, or certainly no more than two. If therefore one takes at face value the email from Mr Dutton, one may conclude that the document must have been sent no earlier than a couple of days before its receipt in Mr Dutton’s office.[9]The matter is raised as one of fact. I have come to the conclusion, for a number of reasons, that the overwhelming probability is that the document was sent on the date recorded on the Judgment, that of 20 June. First, it is unlikely, though possible, that a Judgment will be dated on the day of sending specifically but not sent on that day. There thus needs to be some cogent evidence to show that what should be done and regularly is done, and in respect of which there are systems to ensure that it should be done, has not in fact been done. It is insufficient, in my view, to displace the usual assumptions that would apply to the recording of a date as being the date of sending, specifically entered for that purpose on the document, to set against it a not very specific comment by a solicitor in an email, particularly when there has been no evidence of any greater cogency from that solicitor; but I have other reasons, too, for coming to the conclusion I have.[10]First, the Respondent has produced a copy of its own document recording receipt within the Respondent’s firm of solicitors of the Judgment; that is dated 22 June. As a matter of practice, that firm date‑stamps documents on receipt. I regard it as so unlikely as to be highly improbable that the documents were not sent out to both parties at the same time. There is no good reason why this could or should ever have happened. Thus if the Respondent’s solicitor got through the post a copy of the Judgment and reasons on 22 June, I conclude both parties were sent the Judgment before 22 June, and that supports a view that is consistent with the documents having been sent on 20 June.[11]Next, there was a covering letter sent with the Judgment according to the Employment Tribunal, who were approached by the Appellant to check whether indeed they had sent the Judgment upon the date stated. Both in August 2011 and again by letter of 12 January 2012 the Employment Tribunal responded, on one occasion repeating what the Judge himself had said, that indeed the Judgment had been sent on 20 June. Therefore, to accede to the Appellant’s suggestion would require me to disbelieve what the Employment Tribunal itself was saying on paper in answer to a specific request alerting it to the problem. I do not accept that I should find that the Employment Tribunal was disingenuous in its reply.[12]Accordingly, when I balance the facts that might weigh against the document having been sent on 20 June with those that argue that indeed it was, I have concluded that the document was sent on 20 June. It follows that the appeal was undoubtedly instituted out of time.[13]I then turn to the question of whether I should exercise my discretion to extend time, assuming that the appeal against the Registrar on 19 October 2011 refusing the extension of time is within time. To do so I need to look at the reasons given to me for the delay in putting in the Notice of Appeal. The reasons are essentially these. First, it is said that Mr Dutton should not have put himself in the position of receiving the document from the Employment Tribunal; he should, consistent with the agreement, have removed himself from the record. Secondly, it is argued that the Practice Direction was not provided to the Appellant by Mr Dutton or by the Employment Tribunal. Thirdly, he reminds me that litigants in person should have greater indulgence. He tells me that he was working from early in the morning until late in the evening during the weekdays and so did not have much time available; he is not a qualified lawyer; he did not have legal advice; he negotiated with Mr Dutton whether Mr Dutton would enter an appeal for him; and he reached an agreement about a week before the appeal was due to be entered by which Mr Dutton agreed, for a fee, to draft and lodge a Notice of Appeal. This was working towards a date of 1 August, of course, as the closing date, but Mr Dutton refused to draft such a Notice of Appeal unless he had the money upfront, though he would accept a post‑dated cheque. However, the Appellant had no chequebook, and could not pay until payday, the Friday immediately before 1 August.[14]Thus it was that the Appellant realised he would have to draft and enter the Notice of Appeal himself. He tells me that he had been researching case law and plainly had been considering the points that he wished to make over the period since he had received the Judgment.[15]I have to ask whether these are good reasons such as to justify the delay. I bear in mind that the jurisdiction that I exercise has been described by Sedley LJ in Jurkowska v Hlmad Ltd [2008] EWCA Civ 231 as an unforgiving one, though permitting of the exercise of discretion. It is well recognised that this Tribunal applies its time limits strictly. It does so for good reason. The appeal is an appeal. There has been a first hearing; thus an appellant is not deprived by the time limit from having his case heard at all. Second, if an exception is to be made in respect of that which is a limit and not a target to be aimed at, the exception would have to be applied so that all litigants before this court, of all courts, were treated equally and consistently. It is this need for consistency and coherence in the law that requires this Tribunal to scrutinise very carefully any explanation made to it, so that, for instance, it will never be sufficient of itself for a litigant to complain that he is a litigant in person; so are many. If an indulgence is to be given for extending time limits in the case of one on that basis alone, then so it would have to be with all.[16]There thus needs to be a principled distinction made between would‑be appellants if one is to be permitted an extension of time and another is not. The principle has been recognised in the cases as looking for that which is a truly exceptional reason. It would not, as it seems to me, be a truly exceptional reason that an individual had not seen the terms of a Practice Direction before lodging an appeal, or that they had not had their solicitor come off the record.[17]As to the solicitor, first, I note that even in mid‑July the solicitor was still, without any apparent adverse comment to which I have been referred by the Appellant, referring communications from the Tribunal to the Appellant. Therefore, no complaint was being made by the Appellant at the time that his solicitor had disadvantaged him by failing to come off the record; indeed, he was attempting to negotiate his solicitor’s ongoing services at the time. Secondly, there can be no fault in the Employment Tribunal sending the document to someone who on the face of it, the Employment Tribunal records, was indeed the representative. As to the Practice Direction, first, it is the universal practice of Employment Tribunals to send out a document with a Judgment entitled “Judgment”, which is a booklet advising people of the strictness of time limits and what needs to be done to comply with them, but at any time material to these appeals there was also a website, easily accessible, that contains the Practice Direction. The Practice Direction is clear, and it repeats in more than one place the time limit that is applicable.[18]There can be no problem in this case about knowledge of the time limit, because the Appellant knew of it; the solicitor told the Appellant what the time limit was in his email of 29 June. It is plain that the Appellant knew throughout that he had to get the appeal in before 1 August. There was no question at this stage of his thinking he had longer to do it, because of the argument that I have just rejected based upon the date upon which the document was sent. He might have said that he did not understand what documents were to be supplied; however, that argument, too, must be rejected even if it were contemplated – it has not been clearly made before me – because in a covering sheet the Claimant recorded the documents he was sending; they included the Judgment. He had access to a solicitor throughout had he chosen to use it; he has shown himself, as I shall come to, able to take advice online on a later occasion, so that he could be in no doubt, had he wished to make any appropriate enquiry, as to the documents he needed to include.[19]Accordingly, I have come to the conclusion that the reasons advanced for delay are bad reasons, and do not allow the exercise of discretion in his favour, because to do so would be to act favourably to him and inconsistently when compared to other litigants who come before this court. He does make the point that the error was a simple mistake by him. He attempted to email the documents. He did so in four batches; that was because of data limits, about which he was advised having spoken by phone to the Employment Appeal Tribunal the week before. He did not, despite sending documents through in that way, check by phone on 1 August to see whether they had arrived; he might have done. Whereas he makes the point that one would not normally phone to see if an email had gone through, I think there is force in the Respondent’s suggestion that he might have done so in this case because of the nature of the transmissions, having to be broken down into chunks as they were; in any event, there is no obvious reason why he could not have checked to ensure, by looking at his own transmissions, what had actually been sent. The error was not that which might very well be excused by an exercise of discretion in an appropriate case, consisting of the omission of one page or a mis‑transmission of a small part of a document; it was to omit the entire Judgment itself.[20]It is rightly said by HHJ McMullen QC in the case of Miller v Lambeth Primary Care Trust UKEAT/ 0943/10, 17 December 2010, at paragraph 14 as follows:
“About 600 cases a year fall into the category of cases that 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 are not. These are added to those which are, as here, completely out of time as no document has been filed in time.”
[21]HHJ McMullen QC went on to note that it was not uplifting to see how many appellants failed to follow clear directions and failed to lodge the basic documents, which are, simply, the Notice and grounds of appeal, the claim, the response, the Judgment and the reasons. He observed that a very high proportion involved litigants who took no step until day 42, adding, “It may be human nature to leave difficult decisions to the last moment, but in this court it is a high‑risk strategy”. He no doubt had in mind a Practice Direction made in February 2005 and reported in the Industrial Relations Law Reports for that year at page 189A by the then President, Burton J, who said:
“The reason for this statement in open court is to re‑emphasise [the] requirements and the consequence of failure to comply with them, namely that an appeal not lodged within the 42 days validly constituted, i.e. accompanied by the required documents, will be out of time, and extensions of time are only exceptionally granted […].”
[22]Pill LJ referred to that in rejecting an appeal to the Court of Appeal on the papers in the case of Dunham v Hull & East Riding Overseas Plastic Surgery [2006] EWCA Civ 557 . The Registrar herself, and rightly, in her decision made reference to the case of Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 , in which

Lady Justice Smith had said that it was clear to her that a Judge at this Tribunal:

“[…] was right to hold that service of the whole of the document on which the claim is made is required by the Rules whether in the form of an ET1 or not. The notion that only a part of a document would suffice is most surprising to any Judge who has ever sat on an appeal from or within the EAT. The appellate court or tribunal may well need the whole document.”
[23]Thus, in my view, the error was not a simple error, as it was in Jurkowska ; it is not a case, therefore, which in any sense is the type of exception in which I would be persuaded to exercise my discretion in favour of extending the time limit.[24]I have said nothing about the merits of the case, which are recognised to have some impact, potentially, upon the decision. That is because, it seems to me, they are unlikely to have any such impact unless they can truly be persuasive one way or the other; generally, they will be persuasive against granting an extension of time if the merits are shown to be unusually poor. However, in this case I am prepared to say that having listened to both parties make submissions about the merits, I am not satisfied that they will sway me in any particular direction, and I reach my decision in this case on the time limit points without needing to refer to the merits, which would not, as it seems to me, assist me.[25]I turn, then, to the second appeal. The time here is much shorter; it is not the generous period of time given to an appellant against the Employment Tribunal. But by the time an appeal has been lodged for extension of time to the Registrar, the appellant might expect that he might not have such an extension and might wonder about what to do next; advice is readily available. In this case, there is a better reason, perhaps, for the Claimant not bringing his application in time: he sought advice. He has shown me an email that he received from a Steven Eckett at iLaw, apparently an online legal advice service, who the day after the decision of 19 October said, in the part that is quoted to me, that, “It was a

judge who made the decision”, adding:

“I have never made an appeal to the Court of Appeal! Try googling it – should have some info. Don’t think it is worth you pursuing.”
[26]I have not seen the context within which this email was written to see what inspired the email, but it is certainly consistent with the Appellant’s submissions that here he was misled into thinking that the only route of appeal was to the Court of Appeal, and that he did not realise there was an appeal against the Registrar’s order to a Judge of this Tribunal. It is for that reason, he says, that he did not appeal until in early November he phoned the Tribunal and was told that he could appeal the Registrar’s order; he was asking about appealing onward to the Court of Appeal, but then got the information that he needed. On the same day that he received that information he put in the Notice of Appeal.[27]The reason for this, therefore, is purely ignorance. In the circumstances, there is much to excuse ignorance, but again, on balance, here I do not feel able to extend time in exercise of my discretion. First, there are the same general points to be made about time limits in this Tribunal to which I have already referred; but secondly, I have to ask whether in the particular circumstances of this case the ignorance that is the real reason for the delay here is a sufficient excuse. I have concluded it is not, because this litigant that has appeared in front of me is able, he is articulate, and he has a degree of intellectual ability. He had access throughout to a computer and he was fully capable of taking advice, and did so on occasions. He had emphasised to me the need to obtain the Practice Direction and felt disadvantaged in not having it. I would have expected therefore that he would have taken steps to obtain it. This is a litigant who tells me that he spent very considerable time preparing his Notice of Appeal in the first place, looking at and researching cases, and who has presented to me an appeal that is beautifully paginated and documented, with a full panoply of potentially relevant cases, which it is plain he has read carefully. For such a person I do not think it is good enough simply to be ignorant of the time limit, when it could so easily have been determined in advance, and when he must have known, because of the nature of the application he had to make to the Registrar, that it might be rejected. In such a case it seems to me that there is every reason to insist upon the time limit as a limit and not to extend my discretion, and I therefore decline to do so. Conclusion[28]It follows that in neither appeal have I exercised my discretion to extend time, and it follows that both appeals must be rejected and with them the underlying appeal must fall, since it has never been properly instituted.