Appeal No.	 EAT/0135/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 June 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
(AS IN CHAMBERS)

MR S HAYDOCK	APPELLANT

G D COCKER & SONS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDERS

	APPEARANCES

For the Appellant	MR S HAYDOCK
(The Appellant in Person)	
For the Respondent	MISS ANYA PROOPS
(of Counsel)
Engineering Employers Federation
Broadway House
Tothill Street
London SW1H 9NQ	

MR JUSTICE LINDSAY (PRESIDENT)

1	I have before me the appeal of Mr S Haydock in the matter Haydock v G. D. Cocker & Sons Ltd.  Two judgments have already emerged from The Employment Appeal Tribunal in this matter, that of His Honour Judge Wilkie of 8 December 1999 and an earlier judgment of mine of  
6 June 2000.  Both of those need to be read as a prologue to today’s judgment.

2	What is immediately before me is an appeal by Mr Haydock of 3 March 2000; it was really an application made by telephone and added to in writing on 4 March 2000.  By it he appeals against the Registrar’s Order of 1 March 2000, which was an order refusing to extend time for the lodging of his Notice of Appeal of 10 December 1999.  

3	As will have been seen from my judgment of 6 June 2000 – see in particular paragraphs  
14 – 23 thereof – there were some procedural aspects of this matter which troubled me and which, as it seemed to me, required or made it desirable that Mr Haydock, hitherto in person, should receive some professional assistance.  He was therefore, by letter, invited to apply for legal aid and to advise me if he failed to get it.  That invitation was in writing because Mr Haydock neither appeared nor was represented on 6 June 2000.  I had it in mind that if he neither successfully applied for legal aid or, alternatively, chose not to ask for it, I would then seek to see what steps I could take to arrange some pro bono representation for him, or, possibly and alternatively, that I would see whether I could have an amicus to deal with the procedural difficulties that arose and to deal with them, of course, in a non-partisan way.  Unfortunately, although the Employment Appeal Tribunal was told in January 2001 that legal aid had been refused on grounds of financial ineligibility, I was not told of this until this week.  It was, unfortunately, by then, far too late to enable me to arrange either pro bono representation for Mr Haydock for today, or for an amicus.

4	Mr Haydock in fact, notwithstanding that he earlier wrote to suggest he would not be attending today, has managed to attend today, and again Miss Proops has appeared for the Respondents G. D. Cocker and Son Ltd.  She has put in a helpful skeleton argument that deals in a comprehensive way with the procedural aspect of things but, of course, deals with it from only the Respondent’s side.  Given that the procedural side of things is dealt with only from one side and, inescapably therefore, in a partisan way, I have not thought it right to regard this case as an appropriate one for developing resolutions to the procedural difficulties that I identified in my judgment of 6 June 2000.

5	What then is to be done?  In the absence of an informed argument from both sides on the procedural difficulties it seems to me hard upon a litigant in person, such as Mr Haydock, to blame him for not appealing within a prescribed time a determination which he was never told that he could appeal, the time for appealing which he was not informed about and where, on one view of the Employment Appeal Tribunal’s rules (perhaps in contradistinction to the Employment Tribunal’s rules) the time for appealing could be argued not only not to have expired but not even to have begun.  

6	I am therefore willing to consider what Mr Haydock’s position would be if he were to be granted an extension of time.  If he were, then the merits of his appeal, which in my earlier judgment I indicated had not by then been fully gone into and which, ordinarily, on a simple question of an extension of time, are seldom fully gone into, would move into the foreground.  So far, the Respondents, Cockers, have not needed to address and have not addressed in any detail the merits of the underlying appeal of 10 December 1999.  I would not, though, think it right to impose upon Cockers, or indeed upon Mr Haydock, another long adjournment or another oral hearing, with the attendant consequences of expense and delay, merely to allow them an opportunity to address those merits.  Mr Haydock already addresses the merits to a limited extent in the sense that his Notice of Appeal of 10 December 1999 does itself refer to his arguments, but it does not develop them at all fully and it would not have been appropriate that a Notice of Appeal should do so.

7	What I wish now to collect are the views of both sides as to whether the Employment Tribunal erred in law in denying a witness order in respect of Mr Philpot and to collect those views against an assumption (though, I emphasise, not by any means a decision) that the time for allowing the Notice of Appeal of 10 December 1999 to be lodged would be extended.  So, what is the convenient machinery for doing that?  First of all I direct that a transcript of this judgment should be expedited.  Secondly, within 10 days after the sending of that transcript to Mr Haydock, then, if he wishes (and, of course, he is not to be obliged to do so, but if he wishes) he is to add in writing any fact or argument, beyond those already raised in his Notice of Appeal of 10 December, to make his case that the Employment Tribunal erred in law in refusing a witness order in respect of Mr Philpot.  He is to send whatever writing he wishes to add to me at the Employment Appeal Tribunal and also to Mr Schofield, Head of Legal Affairs at the Engineering Employers Federation, Broadway House, Tothill Street, London SW1H 9NQ, to arrive at both those addresses not later than 12 days after the sending out of the transcript of the judgment.  

8	Mr Haydock will need especially to consider whether he believed Mr Philpot would have been able to add something that Mr Adshead could not, what grounds he had for believing that Mr Philpot would say whatever he did believe that he would say, and to emphasise any other detriment which he claims that he, Mr Haydock, would not have suffered had only he been allowed to have a witness order requiring Mr Philpot to attend.  Then G. D. Cocker & Sons are to have 10 days from their receipt of Mr Haydock’s further writings in order to answer them.  If Mr Haydock has made some assertion or given some evidence that he believed that Mr Philpot could add something material to what Mr Adshead would have said and that would have helped him, Cockers will be able to adduce evidence, if they wish, to counter that, and to add that in their submissions in response to whatever Mr Haydock says.

9	The third stage will be that Mr Haydock will then have a further 7 days from his receipt of Cocker’s material in order finally to answer whatever Cockers have said.  The position then will be that I will be in a position to rule, as seems then to me appropriate, either on the extension of time issue only (and, to some extent, the underlying merits of the appeal may form a part of that consideration) or I can rule only upon the underlying merits of the Notice of Appeal of 10 December 1999, or I can do both.  I would hope that I could do that without requiring any further oral argument from either side.  I will only reconvene some oral hearing if I think it is truly necessary for an informed judgment on the point, but I would hope that, each side having had the further opportunity to add material over the period that I have mentioned, then I will not need to require either side to attend again.  I know that both sides would wish me to get on with the decision without there being a further oral hearing. 

10	If for any reason either side finds the timetable I have mentioned oppressive or that for some reason they are unable to comply with it, then they can ask in writing for an extension of time.  Otherwise I would hope that the two periods of 10 days followed by a short period of 7 days that I have described, should suffice.  In this way it may be that the matter can proceed without a detailed need to go into the greater procedural doubts and difficulties that I touched on in my earlier judgment of 6 June, simply because, in the absence of professional representation for Mr Haydock, it is not convenient to deal with those difficulties because they really need, in their resolution, informed professional argument from both sides rather than simply from one.  

Miss Proops, are there any further directions that I can usefully give today?  No sir.
Mr Haydock, anything you wish to add?  No thank you.