Benney v Department for Environment Food and Rural Affairs (Practice and Procedure: Review) [2015] UKEAT 0252_13_0602

EAT
Benney v Department for Environment Food and Rural Affairs (Practice and Procedure: Review)
[2015] UKEAT 0252_13_0602 · 2015-02-06
[44]“43. In substance and in reality, a review was conducted by the full Tribunal [properly constituted as it then was of the Chairman and one member]. I am well aware from the passages I have referred to above that the language is contra-indicative. But this case took place over two days, the Respondent put in written submissions which were considered, the Claimant had an opportunity to put the material which he wanted before the Tribunal. I have never seen a two-day preliminary consideration for a review and as I look at the six pages of this judgment, it leaves me with the impression that this was, indeed, a review. If that is so, as Mr Manning accepted, he would not have had a complaint. He also accepted that he could not complain of having a hearing, which is what he did, where the Respondent was not there to cross-examine him [and address oral submissions to the tribunal]. As a matter of law, the Chairman was required to order a review if he did not reject it for Rule 35(4) provides that “If the application for a review is not refused the decision shall be reviewed”. It was not refused by the Chairman but steps were taken to list a hearing. The application must therefore have passed the preliminary stage and what occurred could only be a review. If I am wrong, I am anxious to take a practical approach to this case which is proportionate to the issue raised by the Claimant. That is £80 of costs incurred in photocopying and some unquantifiable additional stress. One way is to consider that the preliminary consideration of this was taken by the Chairman, albeit in company with the lay member, Mrs Thurston. That does not get over the Claimant’s criticism that the Respondent had an input into it. However, I do not regard that as fatal. It would have been open to the Chairman in Chambers to have called for assistance from the Respondent. There is no bar to that; there is no proscription on the way in which the Chairman should conduct a preliminary consideration. A hearing may be conducted; representations may be sought.[45]In my judgment, the preliminary consideration was, in fact, undertaken by the Chairman, albeit with Mrs Thurston there and the judgment is not to be reduced to a nullity by what might appear to be the irregularity in relation to Rule 35(3). I can see no disadvantage in a Chairman who wishes to have the contribution of members to the decision to conduct a preliminary hearing on a review doing just that and so I would reject the technical complaint. 46. In any event, it seems to me that the way in which the Tribunal has approached its own reasons is a sufficient justification for this case. It has enabled me to add the reasons in this judgment to the substantive reasons and to assist the conclusions which I have made. As I have indicated, the Claimant was successful in some of the points he made. I, too, must consider the overriding objective. To all intents and purposes, the Claimant has had a review of the judgment at which he has failed. Since he has failed on the substantive judgment, it is clear that there is no reasonable prospect of success of the appeal on the review, the Tribunal having taken all steps which it felt appropriate to adjust its reasons in the light of the application which was made to it. The appeal against the review is dismissed.”54. In those paragraphs the EAT was clearly expressing the view that the irregularity created by preliminary consideration of the review application (if that is what had occurred) by the Employment Judge and one of his members did not render the decision a nullity and that the overriding objective had a part to play in considering the effect of that irregularity. It would of course be a mistake to put too much weight upon that judgment on a Rule 3(10) hearing in which the Appellant was in person and the Respondents were, of course, not represented. However, having put that decision before me, Mr Benney expressly accepted - and I made a particular note of his acceptance - that in deciding whether there had been an irregularity which rendered the decision of Judge Gay a nullity I was entitled to take into account the answer to the question - would the identity of the Judge who considered his application have made any difference to the outcome - and that the overriding objective would be a relevant factor in deciding whether the irregular decision should be said to be a nullity.55. It is important that I should take care before proceeding on the basis of an apparent concession made by a litigant in person; but Mr Benney is a litigant in person with lengthy experience and detailed knowledge of the law; and the concession which he made was, in my judgment, appropriately made. It represented what, in my judgment, is the correct law; and applying that correct law I have no doubt that Judge Gay’s decision was not a nullity if she was in error on the issue of practicability. All the points relating to the overriding objective which I made in considering the practicability (whether rightly or wrongly) are relevant to considerations of the effect of the decision which is now appealed against. It has not been demonstrated that, after the expiry of nearly two years, Judge Byrne would have been in a better position to decide upon Mr Benney’s application than was Judge Gay. The preliminary consideration contemplated by Rule 35(3) is ordinarily carried out on paper; the rule itself expressly prescribes that there need not be a hearing; either Judge would have had the same papers before him or her and no others. A decision on the part of Judge Gay not to go ahead with a paper consideration of the application which was in fact in front of her and to set in motion the process of seeking to transfer it out of the region and to Judge Byrne would have caused delay and some administrative cost; and the application was made ostensibly as part of proceedings which had been finally compromised and, in effect, no longer existed. I adopt, into my reasoning here, all that I said about the considerations to which the overriding objective gives rise earlier in this judgment.56. Mr Tolley relied, in addition to Manning , on a different argument, based on the decisions of the Court of Appeal, in Coppard v Customs and Excise Commissioners ( [2003] QB 1428 ) and Baldock v Webster ([2006] QB 315). In Coppard the Claimant claimed damages for breach of contract in the Queen’s Bench Division of the High Court. Liability was admitted; and there was to be a hearing to assess damages. Without objection, the assessment was made by a circuit Judge who had been appointed to the Technology and Construction Court. Judges of that court regularly sit as Judges of the Queen’s Bench Division; but by an oversight the particular circuit Judge who made the assessment of damages had not been formally appointed to sit in that division. The Claimant was awarded only nominal damages; he discovered the defect in the Judge’s appointment; and the Court of Appeal had to consider its effects. The Court of Appeal held that there was an established doctrine of a “Judge in fact” or “Judge de facto” which applied to validate the decision of a Judge who was believed to have authority to sit and decide the case in question and did not know and had not shut his eyes to the obvious that he lacked that authority; see paragraphs 24 and 40 of the judgment of the court. The purpose of the doctrine was the maintenance of stability and confidence in the legal system and the interests of certainty and finality; see paragraphs 8, 16 and 32 of the judgment of the court.57. In Baldock a similar situation arose. A Recorder who had not been appointed to sit in the High Court, had listed before him, when he was sitting in the county court, a preliminary issue in a case which was proceeding in the local district registry. When the defect in his authority to sit came to light, the Claimant appealed. The Court of Appeal followed Coppard and applied the doctrine of the Judge in fact. Mr Tolley relied on paragraph 21 in which Arden LJ said:
“I agree with the judgment that Laws LJ has given. In applying the public policy to which Laws LJ Laws has referred, the public is also protected by the fact that the county court and the High Court are both parts of the established judicial system of England and Wales. The judge was a properly appointed member of the part-time judiciary, and, if grounds had existed, his decision could have been the subject of an appeal on its merits.”
He submitted that Judge Gay plainly believed that she had jurisdiction and that Mr Benney should not be permitted to undermine her decision on technical grounds and should be limited to attacking her decision on the merits. 58. There is, in my judgment, a clear distinction between a case in which a Judge believes that his appointment is such as to qualify him to hear the case before him and it later turns out that it was not - to which the “Judge in fact” principle may apply - and one in which the Judge makes a mistake in law or as to a precedent fact to his jurisdiction which has not been established, as in R v Lambeth London Borough Council (see above). There was no defect in Judge Gay’s appointment. It could be said that the need for certainty and finality provides a strong reason for concluding that, if it was not impracticable for Judge Byrne to deal with Mr Benney’s application, as long as Judge Gay did not believe that it was not impracticable or turned a blind eye to the obvious - neither of which is alleged - she should be regarded as being de facto permitted to act as she did. On the other hand the lifting of what is a narrow and unusual principle from its role as set out in Coppard and Baldock should not, I suspect, be permitted to the extent that it could be made to apply to substantive issues between the parties as opposed to issues of authority and appointment. I am not prepared to go that far. 59. In any event I do not need to do so. In my judgment the nullity case fails for the reasons I have set out in paragraphs 53 to 55 above. For the reasons I there set out if, contrary to my first conclusion, Judge Gay erred in what she found as to impracticability, that does not render her decision as a whole a nullity; her decision can be upheld if Mr Benney’s application would in any event have failed on other grounds. Extension of time 60. Judge Gay dealt with that issue at paragraphs 9 to 13 of her reasons, which are set out at paragraph 21 above. She concluded that there had been considerable delay on Mr Benney’s part and that the redactions did not have the weight which Mr Benney sought to put on them. 61. Mr Benney accepted that to make a successful attack on those conclusions he had to demonstrate perversity. I have earlier in this judgment set out the test for perversity. 62. It is helpful before turning to the arguments as to extension of time to extract from the long history which I set out in the early part of this judgment a brief chronology of the important dates which are as follows: 08/12/09 Dismissal 15/12/09 Presentation of ET1 05/05/10 Claim for interim relief heard by Employment Judge Byrne; judgment on 14/05/10 …/11/10 DEFRA disclose documents, including the three documents which were redacted 03/12/10 Settlement approved in principle 27/12/10 COT3 form signed 12/01/11 Employment Tribunal claim dismissed by consent …/02/11 Settlement cheque paid 22/08/11 Freedom of Information request to DEFRA 11/01/12 Unredacted version of Background Note disclosed; described by Mr Benney as the “key breakthrough” 02/04/12 Unredacted version of assessment document disclosed 12/04/12 Application for review of decision of 14/05/10 63. Mr Benney’s detailed submissions can be summarised, I hope not unfairly, in this way: (1) The redactions were not justified by legal professional privilege. They were used by DEFRA to their advantage. (2) Judge Byrne was misled by the redactions. (3) Judge Gay was incorrect to consider that there had been considerable delay by Mr Benney in making the Freedom of Information request. The delay was caused by DEFRA’S equivocation. (4) Judge Gay did not carry out any consideration of whether it was just and equitable to extend time. (5) The view taken by the Judge that there was no merit in the application was based on a false premise; she failed to understand that Mr Benney had made his Freedom of Information request in order to gain material which he wished to use in a claim against his trade union; he had no reason to believe that there had been improper redactions. The Employment Judge had erred in principle in considering that there had been delay. 64. In the course of oral argument Mr Benney conceded that he had known of the redactions in November 2010; he did not know what had been redacted but did not challenge the redactions at a CMD which was heard on 26 November 2010. He asserted that he did not know that the redactions were “improper” - to use his word - until 2012. 65. Mr Benney referred me in particular by way of authority, to the decision of the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board ( [2012] IRLR 4 ) in which the EAT, presided over by HHJ McMullen QC, at paragraph 122, in the context of an issue as to whether an application by a Claimant who had failed before the Tribunal to put in new evidence should have been made to the Tribunal rather than the EAT, concluded that the application should, if at all, have been made to the Tribunal. It was relevant to consider whether such an application to the Tribunal had to be made within the 14-day primary period for a review application. At paragraph 122 the EAT said:[122]“ There is a restricted window to make applications for review to an employment tribunal (14 days) but the logical conclusion of a right to make an application based on new evidence is that it can be made at any time, whereas applications based on the interests of justice arising out of some mishap at the tribunal will become known at the time or within 14 days thereafter. A preliminary consideration of an application for review is given by the employment judge who heard the case and unless he or she forms the view that one of the sub rules is not complied with or there are no reasonable prospects of success the review must be conducted, see rules 35(3) and 36(1). ” 66. I do not disagree with the conclusions set out in that paragraph; but I do not see how they can be said to get Mr Benney home. The fact that an application based on new evidence - and Mr Benney based his application on the discovery of the redactions and their impact - may be made at any time does not prevent the Tribunal from considering the nature and effect of delay in making it. Mr Benney also referred me to London Borough of Southwark v Afolabi ( [2003] ICR 800 ), in which the Employment Tribunal had permitted the Claimant to proceed with his discrimination claim after a delay of nine years. The employer’s appeal against that conclusion was dismissed by the EAT and their decision was upheld by the Court of Appeal. The Court of Appeal held that it was only in a wholly exceptional case that a Tribunal could properly conclude that, despite a delay of a magnitude approaching anything like nine years, it was just and equitable to extend time and it could not be shown that the decision to extend time was made in error of law. At paragraph 32 Peter Gibson LJ said:[32]“I think that it would have been better if the employment tribunal had delayed its decision on extending time until it had heard the evidence and submission on the substantive complaint. That complaint was within a relatively small compass with limited evidence to be called. But I am not able to go so far as to say that the employment tribunal was perverse or otherwise made any error of law in deciding to extend time before it went on to deal with the substantive complaint. That decision was one well within the proper ambit of its discretion. ” 67. I am sure that Mr Benney will appreciate that a comparison of the length of delay in one case with that in another is unimpressive. He suggested that if Judge Gay had dealt with the delay issue separately from the other issues relating to the merits she would have reached a different conclusion; but he agreed that she was not obliged to approach the issues in that way. The exceptional facts in Afolabi do not assist Mr Benney, or me; cases in which the delay has been very short are regularly the subject of Tribunal decisions that time should not be extended; Afolabi assists me, in my judgment, only insofar as it demonstrates how difficult it is, in this area, to succeed in attacking a Tribunal’s decision on appeal. 68. In my judgment Judge Gay was entitled to decline to extend time on the basis of delay. She did not reach her decision on the basis that Mr Benney had seen the redacted portion of the relevant documents long before he sought a review; he had not; she said that he knew that there had been redacted material relating to his dismissal and could have made his Freedom of Information request much earlier; there has been considerable delay initially. Nothing which Mr Benney has said or written persuades me that the Employment Judge, in paragraph 11 of her reasons, reached a perverse conclusion as to delay. The summary chronology I have set out shows that there was a delay between the disclosure of the redacted documents and the Freedom of Information application. It was Mr Benney’s case that he had made that application for reasons which did not directly relate to and were not intended to support his unfair dismissal claim; but the whole history shows that he was deeply suspicious of DEFRA’s actions in relation to him; he could have sought to obtain the unredacted versions of the documents earlier; he could have done so before he entered into the settlement. Judge Gay said that she was in the dark as to when Mr Benney took further steps to obtain further papers; but the chronology I have set out shows that he received an unredacted copy of the Background Note in January 2012. Thereafter there was further delay; but I accept that Judge Gay did not specifically identify that delay. 69. In the circumstances I have set out, I am wholly unpersuaded that, in relation to delay, Judge Gay reached a conclusion which no reasonable Judge could reach. Perversity has not been established. Nor do I accept the argument that she did not exercise her discretion to extend time for making of a review application on a just and equitable basis. In paragraph 13 she expressly concluded that it was not just and equitable to extend time in the absence of a proper explanation of delay. 70. In relation to the merits Mr Benney relied upon what Judge Serota had said about the possible importance of the redactions at paragraphs 13 and 14 of his judgment on the Rule 3(10) hearing in these appeals. Mr Benney submitted that the redactions concealed a demonstrable connection between the dismissal and his protected disclosures. 71. Mr Tolley pointed out that that issue had been considered by the Administrative Court in the contempt proceedings which I have earlier described and which were based on the asserted failures of disclosure. The Administrative Court decided that the contempt proceedings should not be permitted to go ahead. Collins J said at paragraph 11: “11. In all the circumstances, one can perhaps understand why Mr Benney is upset at the situation, but having read the documents, I am not able to see how their disclosure could have affected the decision of Byrne HHJ. It is the disclosure before him that is perhaps the most important because, as Mr Benney says, he was not able to establish his right to an interim payment. He would, he thinks, have been able to do so had Byrne HHJ seen these documents. I am afraid that for my part I am quite unable to accept that that is indeed the position.” 72. The issue had also been considered by the First-Tier Tribunal, as I have, again, already set out. That Tribunal’s decision, dated 10 October 2013, need not be cited; I have already set out the most relevant conclusion for present purposes, at paragraph 29. 73. Mr Tolley submitted in his Skeleton Argument that the conclusion of the Administrative Court created an issue estoppel; but that point of law was not considered in any detail before me; and Mr Tolley eventually adopted the position that the issue estoppel might become relevant if I decided to allow the appeal and there was a remission. Mr Benney submitted that there was no issue estoppel because the Administrative Court was deciding only whether there were grounds for his contempt application to go forward. However I need not consider the conclusions of the Administrative Court further beyond saying that I am not, in my judgment, bound by the conclusions of that court as to the nature and effect of the redactions. Nevertheless, having considered them I have come to the same conclusion. I have been through the relevant documents again. I cannot see that the redacted parts of the Background Note document would have assisted Mr Benney in his interim relief application. The redacted portion of paragraph 3 of that document sets out a history which led to without prejudice discussions following his having carried out a campaign against the Department. The reference to that campaign was not redacted. What was redacted was that part of paragraph 3 which dealt with the settlement process which followed. It is true that there is a reference in that part of the paragraph to Mr Benney’s being unable to apply for voluntary early departure in 2007; but there is nothing which indicates that the dismissal which followed the Background Note was based on Mr Benney’s protected disclosures. I take a similar view of the second redacted document upon which stress was laid, the assessment document. I do not need to go into detail because, in relation to that document and any other, I must remind myself that it is not my view which is required. The question is - was Judge Gay’s view that the redactions did not fall outside the scope of legal professional privilege and did not bear the weight which Mr Benney sought to put on them such as to have any bearing on his prospects of winning his interim relief application perverse? 74. I should add that Mr Tolley accepted that the last sentence of paragraph 5 of the assessment document might be said to have fallen outside legal professional privilege. But if that be correct, nevertheless in my judgment it cannot be said that it constituted compelling material which would have made a difference to the application before Judge Byrne. It did not show that the dismissal was for an inadmissible reason as opposed to a breakdown of trust and confidence over a long history. 75. Accordingly I am satisfied that Judge Gay’s decision as to the strength or otherwise of the redacted material has not been shown to have been perverse; it was a decision which was open to her and which has been reached by others since. HHJ Serota may, on a provisional assessment, have taken a different view; that demonstrates the importance of a correct judicial approach to an appeal such as this. Judge Gay’s conclusion cannot be successfully undermined on the basis that it was arguably wrong or that one view means that it was wrong; it must be overwhelmingly demonstrated that no reasonable Tribunal could have reached the conclusion. The Agreement 76. It was part of DEFRA’s submissions that this appeal should not succeed on any of its grounds because the agreement between the parties in the COT3 form was binding between them and had the effect that Mr Benney’s claim has been finally dismissed; there is therefore no live claim in respect of which an application for a review could succeed and Mr Benney had by the agreement expressly contracted not to make any such application. His application was therefore an abuse of the process. 77. I have referred to this point before in this judgment; but it is now time to address it in more detail. I have already set out the relevant terms of the agreement document. 78. Mr Benney relied on this issue upon the decision of the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd ( [2013] UKSC 46 ). The Supreme Court had to consider the effect of conflicting decisions of the Court of Appeal which had held that the Claimant’s patent was valid and had been infringed by the Defendants and the subsequent decision of the Technical Board of Appeal of the European Patent Office which, between the parties, produced very different results. The Court of Appeal declined to vary its order in the light of the European decision partly on the basis that the issues between the parties were res judicata . In their judgments Lord Sumption and Lord Neuberger, with whom the other members of the Supreme Court agreed, gave what I might respectfully describe as an illuminating analysis of the distinctions between the doctrines of cause of action estoppel, issue estoppel and merger, including the much discussed principle in Henderson v Henderson ( [1843] 3 Hare 100 ). It was held that the purpose of the principle of res judicata was to support the good administration of justice, the interest of the public and the parties by preventing abusive and duplicative litigation. 79. I do not need to give way to a temptation to delve more deeply into the Supreme Court’s exposition, alluring though it is. Mr Benney’s point, based on those judgments, was that the issue as to whether the redactions made a relevant difference had never been decided and that he was not barred in any respect by any form of the doctrine of res judicata from advancing his case on that issue. He was, however, tilting at a windmill which does not exist. Mr Tolley’s argument as to the effect of the agreement between the parties has not been based on res judicata , save in one respect which I will come to in considering the second appeal; if it had there would inevitably have been much greater consideration of authority than was put before me and much more debate of the meaning and effect of the decision of Virgin Atlantic on the present case. Mr Tolley’s argument was that Mr Benney’s unfair dismissal claim has been fully disposed of by the agreement in the COT3 form and the consequent final dismissal of his claim. Had the agreement not been in the form which it took it would not have been binding; see section 203 of the Employment Rights Act 1996 ; but it has not been suggested that the formalities required by that section if the agreement was to be binding were not complied with; they were. 80. Mr Benney drew my attention to the Misrepresentation Act 1967 , pursuant to which he is not without remedy against DEFRA while the agreement subsists. He may seek damages for the misrepresentations which he maintains DEFRA perpetrated. I am not to be taken as making any comment as to the merits of any such claim; such a claim will not do anything to undermine the binding nature of the agreement between Mr Benney and DEFRA unless or until it is set aside; and Mr Benney expressly does not seek to do so; he disclaimed any intention of doing so. He suggested that he could seek a declaration that certain clauses of the agreement should be regarded as inoperable or should be set aside by reason of misrepresentation; I do not say anything about whether he could do so; but at this stage he has not done so, and the terms of the agreement are binding and enforceable. The unfair dismissal claim has been and stands dismissed. It is not difficult to see why Mr Benney has not sought to undo the agreement; but his motives are not relevant. 81. It follows in my judgment that for this reason alone, the application for a review was bound to fail. Judge Gay did not decide on that basis; but in my judgment Mr Benney has agreed not to make such an application or to present this appeal; and there are no extant proceedings in the course of which either the application or this appeal could be brought. The appeal is therefore an abuse of the process and should be dismissed on that basis, if for no other reason. 82. I should add that, as part of the additional material which Mr Benney sent to me, I have considered the Committee of Public Accounts’ report on confidentiality clauses and special severance payments. That report is critical of some aspects of the contents of compromise agreements and special severance payments and their use to terminate employment contracts in the public sector; but it does not change the law and does not affect the issues which I have had to consider. I make no comment as to whether the agreement into which Mr Benney entered with DEFRA would or would not fall into any areas criticised in that report; that report cannot undo or diminish the effect in law of any binding contracts entered into before it. The Second Appeal 83. I have set out the history leading to the applications which were referred to the then President at paragraphs 22 to 24 above. I repeat that, as set out by Judge Serota, at the Rule 3(10) hearing in this appeal, it is only the application made by Mr Benney for a preparation time order which is now the subject of this appeal. The other aspects of the Notice of Appeal against the President’s decision are not now live. 84. I do not need to spend time on the point made at the sift stage as to the absence of a judicial decision on the part of the President. HHJ Clark probably did not have the letter or letters which contained Mr Benney’s applications to which the President was responding (and I am not sure that I have them either) and he may not have appreciated that one of Mr Benney’s applications was for a preparation time order. Clearly some of the matters to which Mr Benney referred and to which the President was responding contained complaints about members of staff and/or a Judge or Judges and did not give rise to a judicial decision; but I am satisfied that the request for a preparation time order did. Mr Tolley does not contend either that Mr Benney had not made an application for a preparation time order or that in rejecting that application the President was not making a judicial decision. 85. When Mr Tolley made that concession at the hearing before me, Mr Benney was clearly taken aback; but he quickly recovered and put forward the following submissions:(1) The President had not purported to exercise the discretion given to him under Rule 42(5) to permit the application to be made albeit that it was made well beyond 28 days after the issuing of the interim relief judgment; he merely confirmed a decision taken by the Tribunal staff to decline to process the application.(2) There was evidence that DEFRA had deliberately redacted parts of the document which would have aided Mr Benney’s interim relief application and that they had acted vexatiously, disruptively or otherwise unreasonably so that a preparation time order could be made under Rule 44. He relied upon HHJ Serota’s view of the possible effect of the redactions to which I have referred earlier.(3) The agreement document did not prevent him from pursuing his application for the reasons set out above when I considered that topic in relation to the first appeal and because Rule 42(5) entitled him to consideration by the Employment Tribunal of his application for a preparation time order even though the primary time limit had expired; the agreement did not bar that process. 86. Mr Tolley, on the merits issue, returned to the decision of the Administrative Court. In this second appeal, too, he did not expressly rely on issue estoppel. Therefore leaving that point aside, I do not intend or need to repeat any of what I have said about the effect of the redactions in addressing the first appeal. Had the President considered the merits of the arguments about the redaction - and there is no evidence that he did so or, indeed, that he had those arguments before him save insofar as they were set out in what Mr Benney had said to him - he would not, in my judgment, have been bound to reach the same conclusion as that reached by the Administrative Court; it is highly likely that he would have done; but that an opposite view is possible is clear from Judge Serota’s judgment. There were, however, compelling reasons why the President did not need to deal with the application on its merits and Mr Benney’s appeal against the President’s conclusion must fail. 87. The first reason is that the compromise agreement between the parties was binding upon them; by that agreement Mr Benney had agreed that the proceedings would be dismissed on withdrawal; and they had been finally dismissed. At the time of the President’s decision the proceedings in the course of which Mr Benney made his application had come to a final conclusion; the file had been destroyed as an administrative act as a result. Therefore there were no proceedings in the course of which the application could be made or decided. More specifically, although pursuant to Rule 42(5) an application for a preparation time order may be made at any time later than 28 days from the issuing of the relevant judgment if the Tribunal considers that it is in the interests of justice, there were no proceedings at the time when Mr Benney purported to make the Rule 42 application. 88. Further, Mr Benney had expressly undertaken not to make any such application or to bring any appeal; I have covered this aspect in dealing with the first appeal. 89. Accordingly the President rejected Mr Benney’s application for sound reasons at paragraphs 2 to 4 of his decision letter; those conclusions were not in error of law. Conclusion 90. For the reasons I have set out both appeals are dismissed.