Appeal No. PA/1683/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 2002
         Judgment delivered on 18 July 2002

Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)

MR I IHEME	APPELLANT

(1) FOXGROUND LIMITED	RESPONDENTS
(2) MR IAN LEVENE

Transcript of Proceedings

JUDGMENT

APPEAL FROM THE REGISTRAR’S ORDER

Revised

	APPEARANCES

For the Appellant	MR IHEME
THE APPELLANT
In Person	
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED	

JUDGE PETER CLARK

1.	By an Originating Application presented to the London (Central) Employment Tribunal the Appellant, Mr Iheme, brought complaints of unfair dismissal, racial discrimination and unlawful deductions from wages against the Respondents Foxground Ltd, by whom he was employed between 17 October and 13 December and Mr Ian Levene, a Director of that company.  The claims were resisted.

2.	The matter came before a Tribunal chaired by Mr C B Robson.  By a reserved decision promulgated with extended reasons on 26 October 2001 all claims were dismissed.

3.	By a letter to the Registrar dated 5 December, but not received until 10 December 2001 the Appellant said this:

“…I wish to notify you of my intention to appeal against the decision made by the Employment Tribunal on 26 October 2001.
Could you register my appeal?
Could you send me the necessary forms for this process?
I look forward to hearing from you.”

4.	Thereafter on 18 December the EAT received a Notice of Appeal, together with detailed grounds of appeal.

5.	The ordinary time for appealing expired on 7 December 2001.

6.	On 21 December the EAT wrote to the Appellant, stating that the Notice of Appeal, received on 18 December, was being treated as having been presented 11 days out of time.  He was invited to make an application for an extension of time.

7.	The Appellant did so by letter dated 5 January 2002 and received on 15 January.

8.	Asked for their comments the Respondents’ solicitors replied by letter dated 30 January 2002 opposing the application.

9.	The Appellant, through an organisation calling itself Rike International, responded by letter dated 4 February received on 11 February and a further letter received on 5 March.

10.	Having considered those written representations the Registrar, by an order dated 11 March, refused to extend time.  In particular, she held that the Appellant’s letter dated 5 December 2001 was (a) notification of an intention to appeal and not a Notice of Appeal and (b) was anyway received 3 days out of time.

11.	Against that order Mr Iheme now appeals.

12.	The appeal having been listed for hearing today Mr Iheme applied, by letter from his wife dated 2 July received on 5 July, for an adjournment of today’s hearing until 14 August to allow him to recover a bit from depression.  Attached was a certificate from his General Practitioner, Dr Yu, dated 10 June, putting him off work from 7 April for 13 weeks and giving a diagnosis of depression.  Mrs Iheme also asked for a copy of the court bundle.

13.	That application was opposed by the Respondents’ solicitors by letter faxed on 9 July.  It was pointed out that the Appellant had known of the hearing date since mid-April and had held the medical certificate since 10 June.  The EAT had both sides’ representations in writing.  Further costs were to be avoided.

14.	By letter dated 10 July the Registrar directed that the matter remain in the list for today.  The Appellant was given the opportunity to renew his application for a postponement this morning.

15.	Mr Iheme has attended today and renewed his application.  I refused it.  I am not satisfied that he is unable to attend court to present his appeal.  He is here today.  The medical certificate does not say whether or not he is fit to attend court.  There is no further medical evidence.  It is in the interests of finality for both parties that the matter proceeds.

16.	I invited Mr Iheme to make any oral submissions in support of the appeal.  He declined to do so, maintaining his position that he was unfit to advance the appeal, whilst pointing out, correctly, that I had his representations and those of the Respondent on paper.  In these circumstances I reserve my judgment.

17.	I return to the appeal.  I agree with the Registrar that this appeal is out of time.  The Appellant’s letter dated 5 December 2001 is notification of an intention to appeal and not to be treated as a Notice of Appeal.  In any event that letter arrived on 10 December, 3 days out of time.  The appeal was finally lodged on 18 December, 11 days out of time.

18.	The Appellant’s explanation for the delay was first that he did not receive the Tribunal’s decision until 30 October; he was not given information as to the time for appealing; that he is unrepresented and that he sent to the EAT what he describes as a Notice of Appeal on 5 December.  I have already found that that letter cannot be treated as a Notice of Appeal.

19.	Time limits for appealing to the EAT will be strictly enforced.  Extensions of time will only be granted in exceptional circumstances.  First there must be shown a good excuse for the default.  UAE v Abdelghafar [1995] ICR 65,71 as approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Co. Ltd. [2000] IRLR 111.

20.	Notification to the EAT of an intention to appeal, even if given within time, does not excuse the delay.  Abdulghafar 71E.

21.	In these circumstances I am not persuaded that this is a case in which time should be extended.  The appeal is dismissed.

22.	Finally, the Respondent makes application for the costs in this potential appeal which is said to total £1,212.60 inc VAT.  It is submitted that in applying for an extension of time for appealing and then appealing the Registrar’s order refusing an extension Mr Iheme has acted unreasonably (EAT Rule 34).  I do not accept that submission.  It seems to me that a potential Appellant is ordinarily entitled to pursue both an application for an extension of time and to appeal against its refusal.  There are no particular features of this case which persuade me to characterise this Appellant’s conduct of the proceedings as unreasonable, such as to engage the provisions of Rule 34.  Accordingly I shall make no order as to costs.