Trafalgar Construction Corporation Ltd v Singh (Practice and Procedure) [2014] UKEAT 1502_13_2406
EAT
Trafalgar Construction Corporation Ltd v Singh (Practice and Procedure)
[2014] UKEAT 1502_13_2406 · 2014-06-24
[13]“...that will and must now stop. and certainly, since the new Practice Direction, there has been no application for an extension on that basis, and certainly none that has been granted; and this case, by the very Order which the Registrar has made, signals the end of any laxity in this regard. From that point of view it is useful that [Counsel for the Claimant]...brought the matter forward on appeal, so that I can deliver this judgment in open Court, and make the position entirely clear for the future. ...[15]In those circumstances, the appeal will be dismissed, but I take the opportunity of thanking [Counsel for the Respondent] for bringing this forward on appeal, and recognising that this gives an important occasion for this Tribunal to make the position entirely clear, namely that, in future, the same strict approach, approved in terms by the Court of Appeal in Aziz , will be adopted in respect of a Notice of Appeal which is not accompanied by the required documents within the forty-two days, as has previously been applied to a Notice of Appeal not lodged at all within forty-two days.”19. Mrs Calder rightly points out that the wording here refers to documents. What is not specifically included is a statement of explanation why a document is missing. The principle being expressed, however, is in my view clear. An appeal, to be in time, must be instituted in accordance with the Rules and Practice Direction. If it is not, it is not properly instituted. There is no proper principled reason for treating an appeal, in respect of which any of the documents or text is missing, any differently from one which is simply late. That was made clear in Kanapathiar , as the Registrar herself observed in her decision in the present case. A practice Statement issued by Burton J in February 2005 said that, from the date of that statement: “...ignorance or misunderstanding of the requirements as to service of the documents required to make a Notice of Appeal within the 42 days valid will not be accepted by the Registrar as an excuse.”20. It is plain that by the word “documents” she was meaning any document required by the Rules or Practice Direction to be present. An explanation in writing as to why Written Reasons are not present is a document within that meaning. Accordingly, I accept that the starting point is that the appeal here has to be treated in the same way as if it were simply late. There can be no two classes, even if defined by a word such as “artificiality” where the artificiality is actually a requirement of the Rules. If it were otherwise, then litigants coming before this Tribunal would be treated inconsistently. They are entitled to know what the position is as a matter of justice and legal certainty and for that position to be consistently applied. It is for that reason that, although the exercise of our discretion is sometimes seen to be harsh, it is necessary if fairness as between cases is properly to be done , which is, in my view, and in the view of the EAT generally, an essential part of justice.21. Thus it is that those the exceptions which may exist, have to exist for good reason and will by their very nature be (exceptional although there is no separate test, as such, of exceptionality).22. Here, therefore, I look to see what the explanation is for being late in putting in the Notice of Appeal. As set out in United Arab Emirates v Abdelghafar and Anr [1995] ICR 65 , a decision which has been much approved since, the Tribunal must consider what the explanation is for the default, ask whether it provides a good excuse for the default and whether there are circumstances which justify the Tribunal taking the exceptional step of granting an extension of time (see page 72 C-D). In Aziz v Bethnal Green City Challenge Co Ltd it was emphasised that there had to be not just an honest and full explanation, but a good one. In addition, in concurring, Sir Christopher Staughton said at paragraph 23 that the merits would usually be of little weight, but if it was plain that the appeal had no prospect of success, that should be taken into account.23. Following those principles and those from the other leading cases, which are Jurkowska v Hlmad Ltd [2008] ICR 841 and Muschett v Hounslow LBC [2009] ICR 424 , I have looked for the reasons. What is significant to me here is that there is no plea on behalf of Trafalgar Construction that it was unaware of the time limits or the requirements of the Rules. I am satisfied it had an opportunity to ask for reasons and I am somewhat surprised it did not take those up at an early stage given the extent of the liability against it. The application for reasons was only made after the appeal was put in. I take particular note against Trafalgar that the appeal itself argued the inadequacy of reasons. I take this into account for two particular purposes. First, it seems to leave somewhat surprisingly unexplained why the mind of someone responsible within Trafalgar was not directed to the need for reasons and the need to explain their absence before submitting the appeal. Secondly, and separately, when I come to consider the exercise of my discretion, I will take into account that it is very difficult indeed for an appeal, arguing that the reasons are inadequate, to succeed where there could have been reasons but there are not and where the absence of those reasons is down to the very person who wishes to take advantage of their absence.24. The merits of the appeal are, I think, within the class that Sir Christopher Staughton identified. Nor is there any prejudice of any substance, though there is some, to Trafalgar in the sense that it is still open to Trafalgar, should it wish to do so, to bring county court proceedings since the claim is a purely contractual one and not restricted simply to the Employment Tribunal. I appreciate that is not ideal and it does involve some prejudice. I accept what Mrs Calder has said about that. But that is only marginal in weighing this in the balance.25. I have not been invited to hear evidence. There was a document put before me, belatedly, having at one stage been objected to by the Appellant, but then subsequently advanced in reply and to some extent relied on. That is a written statement of 30 January 2014 from Ms. O’Keefe , who was apparently the responsible officer within Trafalgar for ensuring that this Employment Tribunal matter was dealt with. Mrs Calder did not wish to seek an adjournment so that she could be called, although submitting that, had she known that reliance was going to be placed on the statement, she would have called her.26. I accept that, since the objection to the admission of the statement was taken by the Appellant before me, I should be cautious about accepting that which is in the statement or drawing inferences too readily which are contrary to Trafalgar’s interests. However, what is clear to me from that statement is that, within the 42-day time limit, Miss O’Keefe was aware of the need to apply for Written Reasons within 14 days. I infer from that that she was perfectly capable, and at the time working in a position where she could have taken steps, to understand, if she did not, the need to give an explanation for the absence of the Written Reasons when the Notice of Appeal was submitted.27. I am not satisfied that I have had a full explanation why Written Reasons were not present, even if it is rather difficult to add to the explanation that there simply are none. I do not think it is quite as simple as Mrs Bennett would have it, that Trafalgar are simply to be criticised for not making an application earlier than they did, and that in some way the explanation which should be sought is not for the failure to give a written explanation as to the absence of the Reasons but an explanation as to their failure to request the Reasons. They are two separate things. But they are linked.28. In the event, I have come to the view that here although the breach might be said to be technical, it is a failure to put in an appeal on time. Applying the precedent of Kanapathiar , ensuring consistency with other cases, seeing that there is no good reason given for the absence of the necessary words in the Notice of Appeal, harsh though it might seem, the proper conclusion I should come to unless persuaded by some discretionary aspect is to allow the appeal against the Registrar’s Decision and to refuse to extend time. In dealing with that discretion, I do not see anything which compels me to take a different course. There is much to persuade me that the course is right. I have mentioned the merits. The failure of the Respondents to take the steps which might have been obvious does not assist. This is not one of those cases in which justice cries out for the extension of time, which it does in some. The Registrar was reluctant to extend time. I have rather less reluctance in refusing to do so, for the reasons I have given.29. Finally I would like to thank both Counsel for their focussed submissions and their careful assistance through the relevant facts and authorities.30. For those reasons the appeal is allowed, and the order of the Registrar set aside. The appeal is dismissed as being out of time.