Farmer v Heart of Birmingham Teaching Primary Care Trust & Anor (Practice and Procedure: Appellate jurisdiction/Reasons/Burns-Barke) [2015] UKEAT 0896_14_3103

EAT
Farmer v Heart of Birmingham Teaching Primary Care Trust & Anor (Practice and Procedure: Appellate jurisdiction/Reasons/Burns-Barke)
[2015] UKEAT 0896_14_3103 · 2015-03-31
[16]“ 16. … I have already in Bost Logistics and Muschett expressed my disagreement respectfully with the judgment of Burton P in Woodward [ v Abbey National plc [2005] IRLR 782 ] for at para 33 it requires an examination of whether it was impossible throughout the whole of the 42 days for an appeal to be lodged. That, as I said in Muschett , is not the jurisdiction. Burton P held that that was required by [ United Arab Emirates v Abdelghafar [1995] ICR 65 , more commonly known as Abdelghafar ] and Aziz [ v Bethnal Green City Challenge CO Ltd [2000] IRLR 111 ] but that approach is found in neither, nor is it cited or reflected in Jurkowska [ v Hlmad Ltd [2008] ICR 841 CA]. Those latter three, but not Woodward , are cited in PD3.7. The Registrar relied upon Woodward . Since then, HHJ Hand QC has expressly approved and followed Muschett to the letter: Hakim v The Italia Conti Academy of Theatre Arts Ltd UKEATPA/1444/08. I hold that it is wrong to require an Appellant to show that throughout the entire 42 days it was impossible, or not reasonably practicable, to lodge an appeal, or to withhold discretion if there was a stage in the 42 days when the Notice of Appeal could have been lodged. Impossibility is not just a good excuse, it is perfect. None of the examples in PD3.7-8 is impossibility of performance. Reasonable impracticability (as for presenting a claim in Employment Rights Act 1996 s 111) is not the test either, but it may be a useful guide. This is an open discretion available to the Registrar or to a judge to exercise judicially in accordance with established principles. What is required is an acceptable explanation, excusing inaction or imperfect lodging of the appeal, during each stage within the 42 days, or a compelling other reason.”21. For my part, I would say this. It seems to me that the behaviour of the parties during the entirety of the 42-day period is relevant. However, a party does have 42 days within which to lodge an appeal. The discretion may be referred to as open, but it is a discretion which, like any judicial discretion, must be exercised with due regard to reason, relevance, logic and authority insofar as authority is relevant. Here, authority shows that the principle to be applied is in general terms an unforgiving one. I must, in particular, exercise my discretion in this case with a proper regard for consistency. The danger of sympathy in any one case with the particular circumstances of any one Claimant may lead to making a decision which treats that litigant’s case in a different manner from the way in which the court would treat another in materially similar circumstances. The guidance of case-law is thus important in avoiding this.22. I would in general terms adopt the approach which HHJ McMullen indicates. But it seems to me that every case will turn on its own particular circumstances, that greater regard is likely to be had as a matter of simple practicality to how time was spent in the period immediately before the occurrence of the deadline and that earlier periods are less likely to be of significant relevance. It is nonetheless important to note that, if litigants leave things to the last moment, they are taking a risk and they cannot then complain if that risk materialises where it is a real and obvious risk, as most are, such that the appeal is then not in time even if it is only just a little bit out of time.23. I was referred to the case of Peters v Sat Katar Co Ltd [2003] EWCA Civ 943 . That case demonstrates that there is a discretion which may in appropriate cases, notwithstanding its general strictness, be exercised in favour of a would-be Claimant. In that case a litigant in person did not submit her appeal such that it was received by the Tribunal in time. It was 11 days late. However, in her case she had posted the Notice of Appeal well in advance of the expiry of the time limit. The failure was not hers. The failure was that of the postal service. She made an enquiry, albeit some days after the expiry of the time limit, which revealed its late delivery.24. The Court of Appeal decided that it would exercise its discretion to permit her to proceed in those circumstances. She had been acting entirely reasonably. I note that in that case the time which elapsed prior to her putting the document in the post was not time which figured significantly in the reasoning as being a consideration which should tell against her entrusting a document to the postal service which was delivered unforeseeably late.25. The second matter which I accept from Mr Roberts is that it is in general undesirable to rely more heavily on hindsight than the fair disposal of an appeal might allow (see Jurkowksa v Hlmad [2008] EWCA Civ 231 at paragraph 47). The critical question is, I accept, that in effect identified by Mr Meichen in his submissions, which derives from Abdelghafar . Mummery J, in the familiar passages beginning at page 69 of the report in the ICR headed “Exercise of discretion” and followed by “Application of principles” on page 71, emphasised (see the bottom of page 70, the top of page 71) that the would-be Appellant’s:
“… only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.” 26. The Judgment then continues to set out a number of considerations in which the principles are applied. At 2, page 71D-E, he again repeated that the Appeal Tribunal’s discretion would not be exercised: “… unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. …” 27. In the list which followed, as an example of explanations which have been rejected and were inappropriate, Mummery J included “oversight of the passing of the limit, for example, by a solicitor under pressure of work”
. Mr Sadiq prayed this in aid in suggesting that the reason for the delay occasioned by counsel’s illness, followed by one day when he attended to two pre-booked conferences in preference to dealing with the appeal, amounted to pressure of work and therefore did not itself excuse the passage of time. I accept Mr Roberts’s riposte to this that regard must be had to the entirety of the phrase. What Mummery J was concerned with there was a situation where the only excuse for a time limit being missed was that the solicitor had simply had other things to do. 28. The questions which must be addressed by the Appeal Tribunal, page 72, are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time? The parties are agreed that, so far as the latter is concerned, exceptionality is not a criterion of its own. It is a fact that the circumstances in which the discretion will be exercised will turn out to be rare and exceptional, but it is no part of the test that they must be before the discretion may be exercised. Observations and Conclusions 29. I was not given any direct oral evidence. There would have been questions which Mr Sadiq would have wanted to address, in particular to Ms Moore. But, for reasons which were explained to me at the outset of the hearing, she has been unexpectedly unavailable to attend. Mr Sadiq made it clear that he did not attack her honesty. 30. In the light of the material before me, I have concluded the facts as I have set them out above. I accept that there has been a full and honest explanation for the delay. The issue for me is whether that is a good one in the circumstances. 31. I have had regard, in particular, to the following. The explanation is full in the sense that it is vouched with relevant documents from which I can be certain as to the time and which speak themselves as to the very considerable efforts which, albeit on the final day, the solicitors took to submit the appeal. The essential point made for the Respondents is that the appeal could have been submitted earlier. I think there is some force in that. But this is not a case in which the efforts to submit an appeal were left so late in the day that there was no reasonable opportunity to redress them should there be an error which might be anticipated. 32. What defeated the claim being put in on time was, in my view, a highly unusual combination of circumstances. Those circumstances could not, in my view, reasonably have been anticipated as all coinciding as and when they did. I take into account that it is self-evident from my recitation of the chronology that during 10 September the solicitors made their best efforts to submit the appeal on time. They were thwarted by circumstances to an extent which they could not, in my view, reasonably have foreseen since they had between them arranged what Mr Roberts describes as Plan A and Plan B, and ultimately had to adopt Plan C. Thus Plan A was for Ms Moore to submit the documents, having approved them. That being done at around midday, there was time to rescue matters should things go wrong, as they did. Plan B relied on Ms Canton back at base. Although it is right to say, and the evidence called for the Claimant does not disguise it, that Internet outages were not uncommon, what was uncommon was the length and extent of this particular Internet outage. It would have been unexpected. 33. Notwithstanding that, Plan C was for Ms Moore, now approaching the last minute, but still with sufficient time, to fax the document through. That would have been successful just as would breaking down the size of the files by Ms Canton back at the office had the unexpected not happened, that is that the receptionist, to whom was stressed the importance of ensuring that the documents were sent through by fax to a clearly written phone number, misentered the number. Even then, an attempt was made to obtain services from local businesses, which albeit now getting rather too late had some prospect of success. 34. These did follow earlier delays. But with the exception of the first ten days, which I have already described as regrettable, the actions in the particular circumstances of this case were relatively prompt. Counsel’s illness was itself another unexpected and relatively unforeseeable event. But in every other respect there was no case at any stage of anyone sitting on their hands except for the first two weeks, ten days so far as the solicitors’ office was concerned, when the file was simply put on one side and could and should have been sent from Hereford to Worcester. 35. I do not therefore think that this is one of those cases, of which there are too many, where the parties deliberately let time pass without doing anything, or wake up only at the last moment to the approach of the time limit but, rather, one where they did their best to comply and were defeated late, but not very late in the day, by circumstances beyond their control. It has in many ways much more in common with the case of Peters than it does with many others, though it is a mistake in this area of law to look closely at the particular facts of earlier decisions. Broad consistency is what is required. 36. In the end I have come to the view that the question is the reasonableness of the actions taken, as Mr Meichen puts it. I put to counsel whether time should be extended in circumstances in which it was to be supposed that a litigant had brought his appeal, written out in full, in order to deliver it in person to the EAT on the morning of the last day, and had only been prevented from doing so by taking a taxi to the Appeal Tribunal which was then involved in a catastrophic accident, hospitalising him for the evening. The response which Mr Sadiq initially gave was that time should not be extended in such a case because of the earlier opportunities which would have been missed. But I think on reflection he accepted that it might be that in some situations some events would not be reasonably foreseeable. It seems to me that that is certainly a qualitative approach to take to circumstances such as these. It is another way of asking, perhaps, if the circumstances are unusual such that a decision in favour of the Claimant in this case would not be inconsistent with the decisions against would-be Appellants in others. 37. Taking all into account, I have concluded that in this particular case, in these particular circumstances, I should exercise the discretion which I have to extend time by half an hour to permit the receipt of the Notice of Appeal, half an hour simply chosen because it indicates the slight nature of the extension required, it being accepted that the Notice was complete by 16:08. I do so for the reasons which I have expressed. I should, however, wish to pay tribute to all counsel for the thoroughness with which they have presented their cases, and for the succinctness but appropriateness of their arguments, which has made this appeal both a pleasure for me to preside over and also not entirely easy to resolve. 38. For those reasons the appeal formally is dismissed. The decision is to extend time.