Nalamolu v South London & Maudsley NHS Foundation Trust (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) [2012] UKEAT 1804_10_0203

EAT
Nalamolu v South London & Maudsley NHS Foundation Trust (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke)
[2012] UKEAT 1804_10_0203 · 2012-03-02
[1]This is an appeal from the Registrar against a decision given on 25 October 2011 that refused an extension of time to the Appellant, whom I will call the Claimant, Mr Nalamolu, to appeal her decision originally made on 4 April 2011. By that decision she refused to extend time to allow the Claimant’s Notice of Appeal to be properly instituted, for it was 35 days out of time. Introduction[2]The would‑be appeal itself is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal sitting at London South under the chairmanship of Employment Judge Stacey, sent with Reasons extending to 14 pages on 29 October 2010. The Claimant had made a number of claims, principally unfair dismissal, wrongful dismissal and for unlawful deductions. The Employment Tribunal dismissed those claims, but did find in his favour in respect of deductions made on 13 October until 16 December 2009. The Claimant contends that except in the case of the parts of the Judgment where he succeeded the Tribunal erred. The Claimant had been represented by counsel at the Employment Tribunal, instructed by Messrs Lyons Davidson. The Claimant told me today that those solicitors had advised him that he had very good prospects of success. The Respondent was represented by Mrs Ramadan, a solicitor from Capsticks, who has entered written submissions before the Registrar and before me and has appeared for the Respondent again. Procedural background[3]The Claimant in his Notice of Appeal raised a number of issues. The Registrar decided that the Notice of Appeal was improperly constituted, for it did not include all the relevant documents, and it was not instituted by the last date, 10 December 2010, but was instituted on 14 January 2011, so was 35 days late. The Claimant lodged an application to extend time, and the Registrar refused that on 4 April 2011. The Registrar’s decision included a full consideration of the relevant authorities, and she rejected the arguments and the material that the Claimant had put forward. This is what she said:
“The Notice of appeal has been lodged 35 days out of time and by virtue of Rule 3 of the Employment Appeal Tribunal Rules 1993 as amended in 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 judgment or an order of a tribunal were sent to the parties. Furthermore, specific information is provided with every Employment Tribunal Decision in a booklet entitled The Judgment giving details of how to appeal at the time limits and address to which appeals should be sent ‘you must send a copy of any claim and response, the tribunal judgment and the written reasons for the judgment with your notice of appeal or an explanation as to why none is included’ . The Judgment booklet informs parties of the 4.00 pm cut off time in the EMPLOYMENT APPEAL TRIBUNAL. In order to institute an appeal from a judgment of an employment tribunal the Notice of Appeal shall be accompanied by a copy of any claim and response in the proceedings before the employment tribunal (ET1 and ET3) or an explanation as to why none is included and a copy of the written record of the judgment and the written reasons for the judgment or an explanation as to why none is included. The submission of some documents without a Notice of Appeal cannot be used as a device to claim the appeal was filed in time. Note the EAT Practice Direction paragraph 3.5. The Notice of Appeal, received on the last day of the appeal period, failed to include the ET1 and ET3 for claim 2313057/10, the Judgment and the written reasons and there was no explanation for their absence so the appeal was therefore not properly instituted until after the time limit expired Kanapathiar v London Borough of Harrow [2003] IRLR 571 . […] The appellant appeals a judgment with reasons promulgated on the 27 th October 2010. The last day on which to file an appeal was the 10 th December 2010. The notice of appeal, together with the ET1 and ET3 for case number 2302130/2010 were received on the 10 th December by email. Immediately on the same day the court sent an email to the appellant informing him of the absence of supporting documentation. However he failed to supply these until the 14 th January 2011. He states that he actually sent 5 emails to the court on the afternoon of the 10 th December but the court only received three. The appellant states that he was not aware that only three of his emails had reached the EAT. However, he confirms he received only three receipts of delivery. He asserts that from the time he received the receipts on the 10 th December until the 14 th January he was unable to access his emails. Therefore he would not have known that his correspondence had failed. The appellant acted in person to file his appeal but until a late stage in the appeal period he was represented. He would have been advised as to the need for promptness in respect of appeal. In any event he is computer literate and could have searched the internet for assistance. Merely putting ‘appeal from the employment tribunal’ into the Google search machine would bring up the EAT website as the first choice. The home page of the EAT website contains a link headed ‘how to appeal’. When that link is clicked, extensive information is displayed. There is a section entitled ‘how to send your appeal’ which provides ‘If you use email, the size of any one email, including attachments, must not exceed 10Mb’. The passage continues to explain the formats that can be read by the EAT. The advice also states ‘If an appeal is sent by email it is prudent to check that it has arrived. You may do this … 20 minutes after sending an email’ . It appears that the appellant failed to follow the guidelines to check receipt, particularly important on the last day. He would have had access to the Judgment booklet detailing what documents to include and gives the advice ‘You should get your appeal to the EAT well before the end of the 42 day period …’ . The timely submission of an appeal is the responsibility of the appellant whatever his circumstances. There is no suggestion that he was incapable in any way. He provides no explanation as to why he could not access his email and I find that excuse unacceptable. He is out of time because he left it to the end of the appeal period, the afternoon of the very last day and either failed to comply with the appeal deadline or failed to ensure that he had so complied. He makes no explanation as to why he could not have lodged his appeal much earlier in the appeal period. […] The appellant is not out of time because his emailed [sic] failed but because he left it so late to file his appeal that any such failure would prove fatal. […] Therefore no exceptional reason has been shown why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993. The appellant is referred to paragraphs 1.8.4, 3.6 and 4.3 of the Practice Direction 2008.”
[4]The Registrar examined the EAT email log, which is definitive. The Claimant did not accept the reference in the last paragraph to the Practice Direction, for instead he decided to lodge an application for judicial review on 1 July 2011. That was refused on 9 August 2011 by McCombe J, having had an acknowledgement of service from the EAT. McCombe J observed that the case had no merit whatsoever. The response from the EAT included the submission that as a superior court of record the EAT is not amenable to judicial review. It may be that in the light of the Supreme Court Judgment in R (Cart) v Upper Tribunal and MR (Pakistan) [2011] UKSC 28 that may be putting the matter rather high, but nevertheless the Reasons given by McCombe J included acceptance of the major points in the EAT’s acknowledgement of service.[5]A month passed until 8 September 2011, when the Claimant sought to pursue what he described as his next line of action. This was treated by the Registrar as an appeal against her decision on 4 April 2011, and was therefore 144 days out of time, the relevant time of course being 5 days, and so she refused on 25 October 2011 to extend time. It is against that refusal that the Claimant appeals today, by reference to a telephone application on 28 October 2011. In what I will call her second decision, from which the second appeal is brought, the Registrar said this:
“The appellant applies for an extension of time in which to appeal the Registrar’s Order sealed on the 4 th April 2011 as he is 144 days out of time to do so. The appellant appealed a decision promulgated on the 27 th October 2010 thirty five days out of time. The Registrar refused an application for an extension of the time limit in which to file an appeal. The EAT Practice Direction 2008, paragraph 3.6, provides that an appeal against the Registrar’s decision must be made within five working days of the date the decision was sent to the parties. Paragraph 1.8.4 provides for a generous interpretation of the period of five days. The appellant was sent a copy of the Practice Direction on 14 th January 2011. […] The appellant has failed to appeal the Registrar’s order of the within 5 working days [sic] and applies for another extension of time. He was clearly informed by the Practice Direction ‘an interim appeal lies from the Registrar’s decision to a judge. Such an appeal must be notified to the EAT within 5 days of the date when the Registrar’s decision was sent to the parties (see para 4.3 below)’ . He was pointed to the relevant paragraphs in the Registrar’s judgment. He has access to the internet and to that information on the EAT website. The appellant did not notify the EAT that he wished to appeal the Registrar’s decision. Instead, on the 1 st July 2011 he applied for a judicial review, almost three months after the Registrar’s order. That application was dismissed on the 9 th August 2011. A month later, on the 8 th September, he applied for an extension of time in which to appeal the 4 th April Order. He states that that letter, dated the 2 nd September but received on the 8 th September, stands as his true application. He renewed his application for judicial review to the High Court on the 31 st August 2011 and requested an oral hearing. It is thus clear that the appellant remains of the belief that his remedy lies with judicial review notwithstanding the Rules of the EAT. In order to obtain an extension of time to appeal the Registrar’s order the appellant has to show good reason for the delay. He has not done so. He was legally represented at the employment tribunal and could presumably have consulted solicitors. He is a highly qualified professional person, albeit not a lawyer, and the Practice Direction was available for him to read. Help is available on the EAT website in respect of appeal against the Registrar’s orders. He appears to have done no proper research. The appellant has a responsibility to find out how to appeal and the time limits. He was informed of the relevant paragraphs of the Practice Direction. Apparently he did not read this document in the three months it took to prepare his judicial review and nor did he seek any advice. He could have telephoned the EAT. Unfortunately he does not explain how he came to be of the opinion that judicial review was the correct option.”
[6]In each of the decisions that she made she cited the correct authorities. They are United Arab Emirates v Abdelghafar [1995] ICR 65 , Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 , and Jurkowska v Hlmad [2008] EWCA Civ 231 . The legislation[7]The relevant authorities were cited by the Registrar, and in addition I myself have considered the law and practice in this field in Miller v Lambeth Care Trust UKEATPA/0943/10. The Court of Appeal upheld my Judgment ( [2011] EWCA Civ 722 ). My Judgment reflected upon the major problems posed to this jurisdiction by would‑be appellants who fail to follow the simple rules. Very substantial numbers of people get the procedure wrong, when it is simple, in my view. The documents to be submitted at the same time as the Notice and grounds of appeal are the Judgment and Reasons of the Tribunal below, the claim and the response. It is because of the assiduous attention given by case managers at the EAT that many would‑be appellants are rescued from their own fault, and cases do come on for a hearing, but those who leave it to one minute to midnight have only themselves to blame (see Sedley LJ in Jurkowska ). There is no opportunity for the careful staff of the EAT to expend their time to assist such an appellant. The Court of Appeal recognised that when both in Miller and in Jurkowska the Court upheld the practice and procedure in the EAT in being what is described as unforgiving; the Rules are strict because the time limits are long. Most recently the Court of Appeal has again considered my Judgment in Tamina v NHS Professionals UKEATPA/0274/10 and Zinda v Bank of Scotland [2011] EWCA Civ 706[8]The regime for time limits is the same for all parts of rule 3 and appeals from the Registrar (see Morrison v Hillcrest Care Ltd [2005] EWCA Civ 1378 ).[9]An appeal lies from a decision of the Registrar to a Judge, and, as I explained in my Judgment in Muschett v London Borough of Hounslow [2009] ICR 424 , evidence is often helpful and is adduced. The facts[10]I consulted both the Claimant and Mrs Ramadan about the sequence in which matters would be dealt with today, and it was agreed that the logical approach would be to take the second appeal first, because if the Claimant fails on that, then the first appeal falls away. As he began to make submissions to me it was apparent that he was making assertions of fact, so he agreed to give his evidence on affirmation, and was cross‑examined by Mrs Ramadan. Focussing his evidence on the second appeal, he raised two issues, which were that he did not have the Practice Direction and so did not know how to launch an appeal against the Registrar’s second decision; and that he was pursuing judicial review. He told me that he has access to the internet at the public library. He told me that he had lodged his first appeal here via the internet, that at the Administrative Court he had been assisted by case officers there with forms, blamed EAT officers for failing to give him appropriate material here, and he told me that he had not received the Judgment booklet, as it is called, which is either issued by the Employment Tribunal or referred to in a letter from the Tribunal. I understand that the latter is the practice that came into effect at some stage, but I do not know when. He told me that at the time of the receipt of the written Reasons he was represented by solicitors, who received the Judgment. Those solicitors sent the Claimant only the Judgment and Reasons and no copy of the Judgment booklet or any other information. He then went to a number of agencies, as he described them, seeking advice. He never got the Judgment booklet from them or anyone else. He did make searches in respect of the Registrar’s first Judgment, which, it will be recalled, noted that he was 35 days out of time. He made searches on the internet at the library; he has to wait until a station becomes available, but he did have access during the relevant periods, I find. He found references to Ms Shoesmith, and decided that he would apply for judicial review because of the unfairness in the EAT.[11]The explanation for not appealing against the Registrar’s decision of 4 April 2011 was in two parts: that he was applying to the Administrative Court and he had limited resources, and he did not have the Practice Direction. I found his evidence implausible. He is an articulate and assiduous person, familiar now with litigation. He has good command of the documentation. At the time of the Registrar’s decision and three times thereafter he was pointed to paragraphs in the Practice Direction. I do not accept that the original letter of 14 January 2011 was not accompanied, as it said, by the Practice Direction; this is uniform and sent to everybody. I do not accept his evidence that he did not receive it. Since he is so careful in the way in which he seeks to research matters, a statement that a document was attached to a court letter would in his mind provoke a search for it. He shows no reservation in approaching officers of this court and the Administrative Court to seek assistance. I do not accept that he did not receive the Practice Direction; but if I am wrong about that, then there were ample opportunities for him to have been put on enquiry, and he had the means to obtain the Practice Direction, which is exigible on the internet, to which he had access, and it was his responsibility to do so. Having been referred to the Practice Direction on four occasions by letters from the EAT up to July 2011, he says his first receipt of that was on September 30 2011, when he came to the EAT. As I have found, this was not the first occasion when he received that.[12]The second matter relates to judicial review. He knows, because he continues to rely upon Shoesmith v OFSTED and Ors [2011] EWCA Civ 642 , that proceedings can go ahead in the Administrative Court and in the Employment Tribunal jurisdiction. There was no reason for him not to appeal against the Registrar’s first decision, and it was misconceived, as McCombe J has indicated, for him to launch judicial review proceedings against the Registrar’s decision. That was a complete waste of time. As I understand it, a renewed application has been made and has been stayed pending this Judgment. No doubt the Claimant will wish to reflect upon this before he institutes that renewed application. But even if there were any substance in that as an excuse, and I do not accept it in the light of the evidence he gave me about knowing there were two channels, that he should wait for a month following McCombe J’s Judgment to launch an appeal against the Registrar’s April decision, and so the Registrar refused the second appeal. In my judgment, she was correct to do so.[13]The matter comes before me to look at afresh. The Respondent urges me to take account of the underlying merit of the appeal. Generally speaking, that is of little relevance, but as Sir Christopher Staughton pointed out in Aziz , where it has no merit life should not be breathed into a hopeless appeal. For the purposes of today I have concentrated on the second decision of the Registrar. I reject both the judicial review and the lack of Practice Direction as excuses for failing to lodge a Notice of Appeal for 144 days. The underlying merits would therefore be in respect of the appeal against the Registrar’s first decision. I have heard submissions and argument about that too and some evidence, and from the reading I have done I consider that the appeal against the Registrar’s Judgment would have no merit. I was invited into the merits of the Employment Tribunal Judgment. If I were dealing properly with an appeal from the first decision of the Registrar, I would, as Mrs Ramadan has invited me, considered the merits of that case, but I have not, for the purposes of this appeal, entered into that arena; I have focussed solely upon the merits of the second decision and, in so far as I hold that the second appeal has no chance of succeeding in the light of the first decision, I apply Aziz .[14]Since the Claimant invited me to consider certain parts of the Employment Tribunal proceedings and has introduced new evidence to me today, I regard it as appropriate to observe that my opinion of the Claimant’s evidence is reflected not only by his employer but the Employment Tribunal. The employer’s panels found his explanations for his misconduct to be unbelievable and inconsistent, and that he lacked insight; the Employment Tribunal found that that decision was within the band of reasonable responses of the employer. It agreed with the Respondent that the Claimant’s account was inherently implausible and gave reasons for that. As I have said, I have found his account to me to be implausible too. Conclusion[15]This appeal from the second decision of the Registrar is dismissed, and it is unnecessary therefore for me to decide the first appeal. Permission to appeal refused [reasons not transcribed].