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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Matthews v Cambridge Garage (Farnborough) Ltd [1994] UKEAT 51_94_0710 (7 October 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/51_94_0710.html Cite as: [1994] UKEAT 51_94_0710, [1994] UKEAT 51_94_710 |
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)
(IN CHAMBERS)
JUDGMENT
Revised
APPEARANCES
For the Appellant
MR T L BALLANTINE DYKES
(of Counsel)
Messrs Foster Wells
Solicitors
126 Victoria Road
Aldershot
Hants GU11 1JX
For the Respondents MR R BATES
(of Counsel)
Messrs Parkinson & Co
Solicitors
Rosebank Chambers
Rosebank Parade
Yately, Camberley
Surrey, GU17 7UW
MR JUSTCE MUMMERY (PRESIDENT): This is an Appeal from the Decision of the Registrar dated 16th June 1994.
The Registrar, having considered written representations, refused an Application on behalf of the Appellant, Miss Matthews, to extend the time in which to file an a Notice of Appeal.
Miss Matthews wishes to appeal against a Decision of the Industrial Tribunal held at London (South) on the 17th June 1993. For reasons stated in the Decision registered on the 1st July 1993, the Industrial Tribunal unanimously decided that Miss Matthew's Application for unfair dismissal, refusal to provide a written statement giving particulars of reasons for dismissal and a claim for redundancy payments failed.
At that Hearing, Miss Matthews was represented by Counsel whose name and address was stated in the originating Application presented to the Industrial Tribunal on the 29th September 1992. The Employment Appeal Tribunal Rules 1993, which are in substantially the same form as the earlier 1980 Rules, in force until the 16th December 1993, laid down the time for appealing to this Tribunal as 42 days from the date on which the extended written reasons for the Decision were sent to the Appellant.
The Appeal is instituted when the Notice of Appeal is received in the Employment Appeal Tribunal. The Notice of Appeal in this case was not received in the Employment Appeal Tribunal until the 19th January 1994, 160 days out of time. The Notice of Appeal sets out various grounds, including one highlighted by Mr Dykes on the Hearing this morning a complaint that the Tribunal exhibited bias in preferring the evidence of the Respondent, Cambridge Garage (Farnborough) Limited, to that of Miss Matthews.
An Application to extend time for appealing, the Appeal Tribunal acts on principles laid down in a number of cases, one of the cases has been referred to this morning, Marshall v Harlend v Wolff Limited [1972] ICR 97. That case and a number of later cases make it clear that a time limit is a time limit. If it is not adhered to, the Appeal Tribunal will only extend time if a good excuse is given for failure to comply with the time limit. A good excuse is not just an explanation as to why the time limit was not complied with. It must be shown that there are exceptional circumstances which excuse the failure to comply with the rules. In this case the Registrar took the view that there had not been established a case of exceptional circumstances which excuse the lateness of the Appeal.
Mr Dykes has pointed to a number of features of this case which he says excuse the lateness of the Appeal. The first point is that, as conceded by Mr Bates on behalf of the Respondent, there was a failure on the part of the Industrial Tribunal to act on a notification of change of address of Mr Dykes, as Miss Matthews' representative. The result of that failure is that the full reasons for the decision, sent out on the 1st July 1993, did not reach Mr Dykes until the 3rd September 1993, weeks after the 42 day period had expired. If that had stood alone, that might have constituted an excuse, because there would have been no blameworthiness on the part of Miss Matthews or Mr Dykes, her representative, and no steps could be taken to appeal in time against a Decision which had not been notified.
The crucial point in this case is what happened after the Decision was notified, and whether what happened constitutes an excuse for not then putting in the Notice of Appeal within 42 days of the receipt of the Full Reasons on the 3rd September. The documents and submissions of Mr Dykes show that he had, by the middle of October, drafted a Notice of Appeal. But the Notice of Appeal was not served on this Tribunal until the 19th January 1994. What happened during the period from the 3rd September onwards is explained in a number of letters. It appears that, on the day after the receipt of the Decision by Mr Dykes, he wrote to the Chairman of the Industrial Tribunal expressing surprise that the Decision had taken so long to arrive and raising a number of points. The reply to his letter of the 4th September was sent by the Industrial Tribunal on the 9th September and dealt with, among other things, the possible request for a review. It should be mentioned that there is nothing in the Rules either of the Industrial Tribunal or of the Employment Appeal Tribunal, which limits or excludes the right of a disappointed Applicant or Respondent to pursue an Appeal to this Tribunal and to seek a review from the Industrial Tribunal at the same time.
The position is further explained in letters of Mr Dykes. He wrote a letter on the 20th April 1994 to the Registrar referring to some earlier correspondence relating to his drafting of his Notice of Appeal. He said that he sent the Notice of Appeal with a covering letter to his instructing solicitors, Messrs Tanner & Taylor on the 18th October and expected the matter to be dealt with as quickly as possible. He pointed out that he had done much of the work that a solicitor would normally do in this case, as a means of keeping the costs to Mrs Matthews to a minimum, at least until her application for legal aid for this Tribunal had been successful. He submitted that it was clear that the Appeal should have been lodged within 42 days. So as far as he was concerned there was a good case for the exercise of the discretion on the basis of the enclosed correspondence, which explained the failure to comply with the 42 day limit.
He asked the Registrar to indicate whether or not she would be considering the second period of delay between October and January, when the Appeal was actually received at the Tribunal, as being relevant to the exercise of the discretion. He submitted that it was of no relevance to the 42 day limit, but it was an issue which contributed to further delay. If attention was to be had for that second period of delay, it would be necessary to look for evidence as to whether the Appeal was actually lodged in October, and whether the solicitors, Tanner & Taylor, or the Employment Appeal Tribunal was at fault.
The Registrar had those submissions before her when she made the decision refusing to extend time. An Appeal against the Registrar's decision is a re-hearing of the matter. I have looked at the whole of the correspondence and documentation as if this were a fresh hearing of the application to extend time.
In my judgment, this is not a case in which I should interfere with the Registrar's decision. The papers do not show that there was a valid excuse for the failure to serve a Notice of Appeal on the Tribunal before January 1994. I reject Mr Dykes' submission that what really matters in this case is the initial 42 day period. That certainly is a factor, I have already indicated that if a Notice of Appeal had been put in promptly after the 3rd September, that would probably have been an appropriate case for extending time. It is, however, artificial to approach this matter by dividing up the period since the expiration of the 42 days into three different periods, and then saying, "As there was a good excuse for not getting in the Appeal in the first period, what happens in the later periods is not a matter of serious concern." That is an incorrect way of analyzing the situation. What has to be asked is this question: "Is there a good excuse for this Notice of Appeal not having been served before the 19th January 1994?" It has not been shown there is a good excuse. It is not a good excuse that representatives of an Appellant are looking into other avenues of challenging the decision, such as review. It is not an excuse that there has been some oversight or failure to act promptly on the part of the legal representatives.
It is not for me on this Appeal to seek to apportion blame as between the Appellant, her solicitors and her Counsel. If that is to be investigated, it would be in the context of a complaint of failure of duty made by the client against her advisors. My only task is to decide whether the Registrar was right or wrong in refusing to extend time. She was right because no good excuse has been provided for the 160 days delay in serving the Notice of Appeal.
Other points were made by Mr Dykes, such as the lack of prejudice to the Respondent, are not relevant considerations. He sought to make a point that the Respondents themselves had had to seek an extension of time during the course of the proceedings in relation to the notice of appearance. That is not a relevant consideration when considering an Appeal which has been served out of time. For those reasons, the Appeal is dismissed.