FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00181/97FET
01276/97WO
02594/97TUA
00435/97FET
03253/97UD
00531/97FET
00429/98FET

APPLICANT:	James Meyer

RESPONDENTS:	1.	Department of Agriculture
			2.	Department of Finance and Personnel

DECISION
Decision on application for an extension of the time limit within which the Applicant could apply for a review of the tribunal’s decision issued on 4 June 2001.
Appearances:
The Applicant appeared in person.
The respondents were represented by Mr N Kelly, Solicitor, of the Departmental Solicitors Office.
The unanimous decision of the Tribunal is that:
(i)	It refuses to extend the time limit within which the Applicant can apply for a review of the Tribunal’s decision issued on 4 June 2001;

(ii)	It makes an Order that the Applicant pay to the respondents £1,425.00 in respect of the costs incurred by the respondents in defending the application.

REASONS

1.	The Tribunal heard the above complaints made by the Applicant over a period of 19 days from 13-30 November 2000 (with the exception of 24 and 27 November 2000), 1-8 December 2000 and 21 December 2000.

2.	By Decision issued to the parties on 4 June 2001 the Tribunal dismissed all the Applicant’s complaints.  

3.	By letter dated 10 May 2002 and received on 14 May 2002, the Applicant requested a re-hearing of Case Reference Nos: 00181/97FET, 00531/97FET and 03253/97UD “on the grounds that the Applicant has obtained new evidence which was not made available to the Tribunal at the time of the hearing.  This is material evidence that the Respondent had access to and should have made available to the Tribunal.  The fact that this was not available to the Tribunal meant that the Applicant did not get a fair hearing of his case, and therefore his right to a fair hearing was denied”.

By way of post script the Applicant added:-

“It should be noted that the Applicant did point out during the hearing that he had requested the information from the Respondent which he now has, but the Respondent did not supply that information”.

4.	The Applicant made it clear in his written submission and at the hearing that he was seeking a review on the grounds that the interests of justice required such a review under Rule 10(1)(e) of Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989.

5.	Rule 10(2) stipulates time limits for making an application for a review in the following terms:-

“An application for the purposes of paragraph (1) may be made at the hearing.  If the application is not made at the hearing, such application shall be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the Decision was sent to the parties and must be in writing stating the grounds in full”.

6.	Rule 12(2)(a) provides:-

“A Tribunal may, if it thinks fit, -

(a)	extend the time appointed by or under these Rules for doing any act notwithstanding that the time appointed may have expired”.

7.	As the Applicant’s request for review of the Tribunal’s Decision issued on 4 June 2001 was not received until 14 May 2002, the parties were informed that a hearing would be arranged to consider:-

(i)	an application to extend the time limit for applying for a review
(ii)	if granted, an application for review;
(iii)	date for the review hearing if the applications at (i) and (ii) were granted.

THE TEST TO BE APPLIED BY THE TRIBUNAL

The Applicant provided the Tribunal with a written submission, a number of legal authorities and in addition he made oral representations at the hearing.  As made clear at the hearing, the Tribunal only had regard to those written submissions which related to the application to extend the time limit within which the Applicant could apply for a review on the ground sought in his letter of 10 May 2002 received on 14 May 2002.  In relation to the test to be applied by the Tribunal when deciding whether the time limit should be extended, the Applicant referred the Tribunal to the Decision of Kerr J in Re Goldenvale (UK)’s application (1998) NIJB but pointed out that that Decision had been made before the Human Rights Act 1998 had come into force.  At page 276 of that Decision, Kerr J stated:-

“It was not in dispute that the test to be applied by the Tribunal was whether the interests of justice required an extension to be made.  As Mummery J pointed out in the United Arab Emerates however, the discretion to be exercised by the Tribunal in deciding whether the interests of justice require an extension must be exercised in accordance with established principles of what is fair and reasonable.  In this jurisdiction, Davis –v- Northern Ireland Carriers remains the leading authority for the exposition of those principles.  They were set out by Lowry L C J in the following passage (See at 20):

“Where a time limit is imposed by statute it cannot be extended unless that or another statute contains a dispensing power.  Where the time is imposed by Rules of Court which embody a dispensing power, such as that found in Order 64 rule 7 the Court must exercise its discretion in each case, and for that purpose the relevant principles are:

(i)	Whether the time is sped: a Court will, where the reason is a good one, look more favourably on an application made before the time is up; 

(ii)	When the time limit has expired, the extent to which the party applying is in default;

(iii)	The effect on the opposite party of granting the application and, in particular, whether it can be compensated by costs;

(iv)	Whether a hearing on the merits has taken place or would be denied by refusing extension;

(v)	Whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) to be made which could not otherwise be put forward; and

(vi)	Whether the point is of general, and not merely particular, significance.

To these I add the important principle:

(vii)	That the rules of Court are there to be observed”.

Although the Decisions of Lowry LCJ and Kerr J were made before the introduction of the Human Rights Act 1998, the Tribunal considers that the test and principles set out on those two cases are compatible with the Applicant’s right to a fair hearing and are appropriate to follow in this case.  

8.	The Tribunal does not consider that these provisions conflict with the Applicant’s right to a fair hearing.

9.	The Applicant provided the Tribunal with written submissions prior to the hearing on 4 April 2003.  The Applicant also made oral representations at the hearing on 3 February 2003 and 4 April 2003 and referred the Tribunal to a number of decided cases.  Mr Kelly made oral representations at those hearings and referred the Tribunal to one decided case.  At the hearing on 4 April 2003, Mr Kelly objected to the Tribunal taking into account those portions of the Applicant’s written submission which related to matters other than the ground upon which the Applicant sought a review in his letter of 10 May 2002 and the extension of the time limit within which he could make a review application.  The Tribunal indicated that it would only take into account submissions which related to the ground of review contained in the Applicant’s letter of 10 May 2003 and to the issue of whether the time limit for seeking a review on that ground should be extended.

10.	APPLICATION OF THE DAVIS PRINCIPLES

(i)	Whether the Time is Sped

The time in this case is sped.  That is because the application for review was received over 11 months after the date on which the Decision was issued to the parties and over 16 months from the completion of the hearing.  As the Applicant was provided with the documents which he described as “new evidence which was not made available to the Tribunal at the time of the hearing” in his application for review around the commencement of the hearing in November 2000, the Tribunal considers that, whether or not the Respondent should have provided those documents to him at an earlier stage, he could reasonably have been expected to have been aware of the need for a review within the time limits provided.

(ii)	When The Time Limit Has Expired, The Extent To Which The Party Applying Is In Default

The Applicant claimed that he was not in default because he had only obtained the documents, which he described in his letter of 10 May 2002 seeking a review, as “new evidence which was not made available to the Tribunal at the time of the hearing”, approximately 2 months before 10 May 2002 and that it had taken him 2 months to go through them.  As a postscript to his letter the Applicant stated “it should be noted that the Applicant did point out during the hearing that he had requested the information from the Respondent which he now has, but the Respondent did not supply that information”.  The Applicant claimed that the documents arrived anonymously at his home in a brown envelope which he did not keep.  The Applicant had not made a note of the date upon which he received the documents and could not remember the date.

The Applicant did not reveal in his letter of 10 May 2002 seeking a review that these documents which he described as “new evidence which was not made available to the Tribunal at the time of the hearing” were in fact the same documents that the First Respondent had identified as tab 63, that the First Respondent had provided to the Applicant at the commencement of the hearing in November 2000, that the First Respondent sought to have admitted in evidence and that the Applicant, having had the opportunity to consider them for approximately 3 weeks, made detailed objections to their admission primarily on the ground of irrelevance.

Nor did the Applicant reveal to the First Respondent’s Solicitor, following his letter dated 1 November 2002 to the Applicant asking for a copy of the “new evidence”, that the “new evidence” was the documents contained within tab 63.  Instead of simply informing the First Respondent’s Solicitor that the “new evidence” was the documents contained in tab 63 or instead of sending the Respondent a copy of the actual documents, which amounted to a two page letter from the First Respondent’s Personnel Officer to the First Respondent’s Solicitor together with sixteen pages of computer print-outs, the Applicant sent the First Respondent’s Solicitor to computer print-outs in a different format to those contained in tab 63 or as the Applicant called it in “manageable form”, without explaining what he had done.  The Applicant told the Tribunal that he did not send the actual documents which were contained in tab 63 because it would be like “sending coals to Newcastle”.

Nor did the Applicant reveal to the Tribunal at the initial extension of time hearing on 3 February 2003 that the “new evidence” was in fact the documents contained in tab 63.  It was only when the Applicant produced the actual “new evidence” at the request of the Chairman that Mr Kelly, having had the opportunity to consider the documents, claimed and the Applicant accepted that the “new evidence” was in fact the documents contained in tab 63 which the Respondent had provided to the Applicant at the commencement of the hearing in November 2000.  It was clear form the transcript of 7 December 2000 that the First Respondent sought to have those documents admitted, that before considering the application, the Chairman checked with the Applicant whether he had had the opportunity to go through the documents and the Applicant confirmed that he had.  The First Respondent was then given the opportunity to make a detailed application and the Applicant was given the opportunity to make detailed objections which he did.  Towards the end of the Applicant’s objection he submitted that as the information prepared by the Respondent relied on Doctor Greer’s assertion that the estimate of 90% accuracy was correct, that should have been dealt with while Doctor Greer was giving evidence.  Following those submissions, the Chairman indicated that if the Tribunal was to admit the evidence, Doctor Greer would need to be recalled as he had not given any evidence about the 90% reliability of the information.  The First Respondent accepted that the Applicant would, in fairness, be entitled to cross-examine Doctor Greer further if the documents were admitted.  The First Respondent then indicated that in the interests of expediency and given the time frame involved (7 December being the penultimate day of the 4 weeks allocated to the case) withdrew their application to have the documents admitted.  The Applicant claimed that although he had been provided with the tab 63 documents at the hearing and had them throughout the hearing, he had not retained them after the hearing because the First Respondent had withdrawn its application to have them admitted.  The Applicant did not however know what he had done with them.  Given that the Applicant had retained all the other documents from the case, the Tribunal found it highly unlikely that he would not have retained the documents in tab 63.  That is particularly so in view of his additional claim at the hearing on 4 April 2003 that the real reason he objected to the admission of the tab 63 documents was because although he told the Tribunal that he had had the opportunity to go through the tab 63 documents, he had not had a sufficient opportunity to go through them.  If that is correct, the Tribunal considers, having had the opportunity to observe and listen to the Applicant over a lengthy period, that he was the type of individual who would have retained them to go through them afterwards as he in fact did.

The Applicant claimed that it was the Respondent who was in default because he had requested the information contained in the tab 63 documents in July 1998 and the computer print-outs contained in tab 63 should have been provided to him in August 1998 when it was provided by the First Respondent to its Solicitor.  The Applicant claimed that as it had taken the First Respondent 27 months to provide him with those computer print-outs, the Tribunal should allow the Applicant the same period of time in which to seek a review.  Even if the computer print-outs in tab 63 were properly discoverable to the Applicant in 1998, the Tribunal is not satisfied that the computer print-outs contained in tab 63 were properly discoverable to the Applicant because the letter from the Personnel Officer to the First Respondent’s Solicitor dated 28 August 1998 appears to confirm Mr Kelly’s submission that they were generated at his request to enable him to advise the First Respondent on the conduct of its defence.  However, even if those documents were properly discoverable to the Applicant some 27 months prior to the hearing, the Tribunal does consider that the Applicant should automatically be entitled to the same period of time in which to apply for a review as the First Respondent took to provide the documents particularly when the documents were provided to the Applicant at the commencement of the hearing and the Applicant had had the opportunity to go through them before the First Respondent sought to have them admitted in evidence.

The Tribunal considers that it is highly likely that the Applicant did retain the documents known as tab 63 following the completion of the hearing on 21 December 2000 and that he created the anonymous brown envelope story to get round the lengthy delay for which the Tribunal considers he is totally responsible.

Although the Applicant did indicate at the outset of the extension of time hearing that the new evidence was information the Respondent wanted to introduce and withdrew the Applicant did not reveal to the Tribunal at the hearing etc

(iii)	The Effect On The Opposite Party On Granting the Application

The Tribunal only considered the 11 month period between the expiry of the time limit for making a review application on 18 June 2001 and the date upon which the application for review was actually received on 14 May 2002 as the Applicant is not responsible for any additional period.  The Tribunal considers that the granting of an extension of the time limit would have a prejudicial affect on the First Respondent because the memories of its witnesses, in particular Doctor Greer, who had already retired before the hearing commenced in November 2000, will have faded during that 11 month period.  

(iv)	Whether A Hearing On The Merits Has Taken Place

The Applicant is seeking to have a re-hearing of 3 of his 6 complaints insofar as they relate to the allocation of work with the admission of the computer print-outs contained in tab 63.  The Applicant’s claims in relation to the allocation of work one out of five claims in case reference number 00181/97FET and one out of thirteen matters in case reference numbers 03253/97UD and 00531/97FET.  The Tribunal is satisfied that there has already been a hearing on the merits of the Applicant’s complaints relating to the allocation of work.  The details of those complaints, the evidence adduced, the Tribunal’s findings of fact and conclusions are set out at paragraphs 10, 11, 12 and 51 of the Decision.  In addition to its own evidence, it is recorded at paragraph 10.6 of the Decision that the Applicant relied on the following evidence in support of his claim in relation to allocation of work:-

a)	Computer print-outs of allocation lists;
b)	Completed work summaries for himself and Ruth Rainey;
c)	A graph of average herd sizes tested over a two-year period;
d)	The evidence of Mr Lavin, a former temporary veterinary officer in the Ballymena Division; and
e)	The evidence of Mr McLister, a permanent veterinary officer who had previously worked in the Ballymena Division.

It is recorded at paragraph 10.7 of the Decision that the First Respondent relied on the following evidence in support of its claim in relation to allocation of work:-

(I)	The evidence of Doctor Greer, the Divisional Veterinary Officer responsible for the Ballymena Division at the relevant time;
(II)	Mrs McAuley, a Patch Veterinary Officer in the Ballymena Division;
(III)	Mr McElfatrick, a Patch Veterinary Officer who formerly worked in the Ballymena Division;
(IV)	Ms Ruth Rainey, the temporary Veterinary Officer in the Ballymena Division with whom the Applicant compared himself;
(V)	The Applicant’s annual reports.

It is recorded at pages 23-46 of the transcript for 7 December 2000 that the First Respondent sought to have computer print-outs contained in tab 63 admitted in evidence, and that before considering the application the Chairman asked the Applicant if he had had the opportunity to go through the documents which he had had from the beginning of the hearing and that he confirmed that he had.  The First Respondent ‘s application and the Applicant’s objections are recorded in full.  It is also recorded that once the Chairman pointed out that if the documents were to be admitted then Doctor Greer would have to be recalled, the First Respondent accepted that that would be the appropriate way forward but in the interests of expediency and given the fact that 7 December 2000 was the penultimate day of the 4 weeks which had been allocated to this hearing, withdrew their application to have the documents admitted.  Although the Applicant is now alleging that these documents would support his case, he objected to their introduction on 7 December 2000 essentially because “they are not really going to tell us anything”, and “all that’s going to happen is we’re going to waste a day and a half talking about them”.  

(v)	Whether There Is A Point Of Substance

It is difficult for the Tribunal to assess whether or not there is a point of substance without going further into the tab 63 documents and their source.  However, the Tribunal considers that if the Applicant’s claim in relation to these documents is correct then there would be a point of substance to be determined.  

(vi)	Is The Point Of General And Not Merely Particular Significance?

Despite the Applicant’s submissions to the contrary, the Tribunal considers that the point of substance is of particular significance to those parts of the Applicant’s complaints which relate to the allocation of work and are not of general significance.

(vii)	That The Rules Of Court Are There To Be Observed

As set out above, even if the documents in tab 63 should have been provided to the Applicant in August 1998, the Tribunal considers that the Rules of Court are there to be observed and that the interests of justice do not require that a party seeking a review should automatically be given the same time limit in which to apply for a review as the other party took to provide the documents.

(viii)	Having considered the test to be applied by the Tribunal as set out at paragraph                above in accordance with the principles set out at paragraph                     above, the Tribunal is not satisfied that the interests of justice require an extension to be made.  The Applicant’s application for a review of the Tribunal’s Decision in case numbers 00181/97FET, 003253/97UD and 00531/97FET insofar as they relate to the allocation of work is therefore dismissed.

(viiii)	Application For Costs

Rule 11(1) of Schedule One to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989 provides:-

“Subject to paragraph (2), a tribunal shall not normally make an award in respect of the costs or expenses incurred by a party to the proceedings but where in its opinion a party (and if he is a Respondent whether or not he has entered an Appearance) has in bringing or conducting the proceedings acted frivolously, vexatiously or otherwise unreasonably a tribunal may make an Order that that party shall pay to another party either a specified sum in respect of the costs or expenses incurred by that other party or the whole or part of those costs or expenses as taxed, if not otherwise agreed).
The Tribunal therefore approached the First Respondent’s application for costs in respect of the review hearing on the basis that the Tribunal shall not normally make an award in respect of costs unless in its opinion a party has in bringing or conducting the proceedings acted frivolously, vexatiously or otherwise unreasonably.  The Tribunal having considered all the circumstances of this review application is of the opinion that the Applicant has acted unreasonably in bringing and conducting these proceedings for the following reasons.

(1)	Whether or not the Applicant should have had these documents prior to the hearing, he was provided with the documents at the commencement of the substantive hearing in November 2000.
(2)	The Applicant was given the opportunity to go through the documents before the Tribunal considered the Respondent’s application to have the documents submitted in evidence.  Contrary to his claim at the extension of time hearing that he did not have a sufficient opportunity to go through the documents, he not only indicated at the substantive hearing that he did have the opportunity to go through the documents but he made detailed objections in relation to their admission.
(3)	Contrary to his assertion that he did not retain those documents following the completion of the hearing, the Tribunal considers that it is highly likely that he did retain those documents.
(4)	When applying for a review in his letter of 10 May 2002, the Tribunal considers that the Applicant deliberately chose not to reveal that the “new evidence which was not made available to the Tribunal at the time of the hearing”, was in fact the documents contained in tab 63 which he had been provided with at the commencement of the hearing.  Instead he includes a post script which far from implying that that new evidence was in fact tab 63, the post script which reads “it should be noted that the Applicant did point out during the hearing that he had requested the information from the Respondent which he now has, but the Respondent did not supply that information “, suggests that he had not received the documents at the hearing.

When the First Respondent’s Solicitor asked for copies of the “new evidence” the Tribunal considers that the Applicant deliberately chose to reveal that the documents were in fact those in tab 63.

(5)	The Tribunal considers that even at the first extension of time hearing although the Applicant indicated that the Respondent had sought to have the documents introduced but withdrew, the Tribunal considers that it is unlikely that the Applicant would have revealed that the "new evidence” was the tab 63 documents if the Chairman had not specifically asked for the actual documents to be produced.
(6)	The Tribunal then adjourned the hearing to give the parties the opportunity to consider the relevant extract from the transcript of 7 December 2000 and any other relevant extract from the transcript of the hearing and to give the Applicant the opportunity to seek legal advice in relation to his ground for review.  The Tribunal directed that the hearing for directions will be then arranged for 21 February 2003 to consider the way forward.  Following that hearing both parties were provided with extracts from the transcript of 20 November 2000 and 7 December 2000 in which the documents in tab 63 were referred to.  At that hearing I warned the Applicant that in view of:-

(i)	His acceptance at the hearing at the hearing on 3 February 20003 that the “new evidence” which he claimed he had obtained through the post and which he claimed was not made available to the Tribunal at the time of the hearing amounted to the same documents as those contained in tab 63;
(ii)	The contents of the extract of the transcript for 7 December 2000 which records that the Respondent provided the Applicant with the documents in tab 63, that the Applicant had those documents during the hearing, that the Respondent sought to have those documents submitted at the hearing, that the Applicant objected to the admission of those documents and that the Tribunal made a ruling in relation of those documents on 7 December 2000, I warned the Applicant that if his application for an extension of the time limit to apply for a review and his review application itself were unsuccessful, and if the Tribunal concluded that he had acted unreasonably in pursuing those claims in light of the above matters, an Order for costs could be made against him.
(iii)	The Tribunal is of the opinion that the Applicant deliberately created a false story with regard to the anonymous delivery of the documents to him in a brown envelope to get round his lengthy delay in applying for a review.
(iv)	If the Applicant had made clear either in his application for a review or in response to Mr Kelly’s request for a copy of the “new evidence” the initial hearing on 3 February 2003 would not have had to have been adjourned and the interlocutory hearing which took place on 21 February 2003 would not have been required.  The Tribunal therefore considers that the First Respondent is entitled to its costs in respect of all three days.  Mr Kelly indicated that he had spent 15 hours in hearing and preparation time at £95.00 per hour which totalled costs of £1,495.00.  The Tribunal considers that the amount of time spent and the costs claimed are reasonable.  The Tribunal therefore orders that the Applicant shall pay to the First Respondent £1,495.00 in respect of the costs incurred by the First Respondent in defending the Applicant’s application for an extension of the time limit in which to apply for a review.

Chairman:

Date and place of hearing:3 and 21 February 2003 and 4 April 2003 in Belfast.

Date decision recorded in register and issued to parties: