Appeal No. UKEAT/0480/05/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 
	At the Tribunal
	On 30 September 2005

 
Before
HIS HONOUR JUDGE McMULLEN QC
(IN CHAMBERS)

 
 
MR STEPHEN DODD	APPELLANT

 

 
THE BANK OF TOKYO-MITSUBISHI LIMITED	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT
 
APPEAL FROM REGISTRAR’S ORDER

 

 
 
	APPEARANCES

 

For the Appellant	MR D MATOVU
(Of Counsel)
Instructed by:
Messrs Ormerods Solicitors
Green Dragon House
64-70 High Street
Croydon
Surrey CR0 9XN	
For the Respondent	MS I SIMLER
(Of Counsel)
Instructed by:
Messrs Clifford Chance LLP
10 Upper Bank Street 
London E14 5JJ

SUMMARY

 
When a Judgment of an Employment Tribunal was not received by the Claimant’s solicitor until the 42nd day after its promulgation, due to no fault of the solicitor, and all reasonable steps were taken to ensure a Notice of Appeal was filed within 14 days thereafter, it was right, following a contested hearing with live evidence explaining the circumstances, to exercise discretion to allow it to be validated

HIS HONOUR JUDGE McMULLEN QC
 
1.             This is an appeal from the Registrar.  She decided that the Notice of Appeal was presented out of time on Monday 18 April 2005 when the deadline expired 42 days after the Judgment of the Tribunal was sent on Friday 18 February 2005 expiring on Friday 1 April 2005.
 
2.             The Registrar gave her reasons.  It is not contended that she did not cite the relevant authorities.  An appeal against that Judgment has been launched on behalf of the Claimant in the proceedings before the Employment Tribunal and I will continue to use the titles used there.  
 
3.             The Claimant failed in his claim of unfair dismissal following a four day oral hearing and a day in Chambers with 54 pages of double mutual exchanges of written submissions.  The parties were left at the end of the oral hearing knowing that the Tribunal would reconvene in Chambers on 8 December 2004.  
 
4.             There is a difference in recollection of Mr Daniel Matovu of Counsel who appeared there and here for the Claimant and Miss Ingrid Simler of Counsel for the Respondent.  The difference is as to when the judgment would be forthcoming.  In any even it was expected to be some time in the new year 2005 and I am prepared to accept that both parties would have expected at the time that the preliminary indication was given at the end of the oral hearing that a judgment from the Tribunal would be forthcoming by early February 2005.  
 
5.             In any event those periods are not rigid because a Tribunal is required to give its judgement or explain why not, three and a half months after the close of written submissions in a case such as this and the judgment here was given well within that time.  Difficulties obviously occur in a tripartite Tribunal with a majority specialist lay composition.  No criticism can be made of the Tribunal for the date on which it handed down its reasons.  
 
6.             In Mr Matovu’s written Skeleton Argument he makes two telling points.
(1)               that the Registrar has made Findings of Fact which are erroneous or unsubstantiated;
(2)               that her hearing on an appeal is a re-hearing.
 
7.             Bearing in mind those submissions I decided that I should find facts myself and invited Mr Matovu to call evidence upon which I could then make findings and proceed to make a judgment and if necessary to exercise discretion.  That had the advantage that Ms Simler was able to cross-examine the witness.
 
8.              The witness was Miss Joanne Cargill who is an assistant solicitor only recently qualified but who was on the record at the Employment Tribunal.  However, she worked at this time on a number of different projects in the firm of Ormerods, including working for an employment specialist, Mr Jones.  There was at least one other employment specialist in the firm. Ormerods had moved.  There are two premises relevant here – both in the High Street at Croydon, South London.  When the Claimant presented his Originating Application.  He named as his representative Coningsbys at 87 High Street, Croydon.  
 
9.             On 1 July 2004, Coningsbys merged with Ormerods whose premises are at 64-70 High Street, Croydon.  Over a period of time there was a phased removal of staff from Coningsbys to Ormerods at 64-70.  There was in place an arrangement made with the DX – this is the private sector transport organization used by lawyers and bodies engaged in the administration of justice for the exchange of documents.  
10.         There was a less formal arrangement for re-directing Royal mail which was largely dependent upon the daily attendance of a member or members of staff to collect the mail from the old premises.  I infer that the two are not far apart.  
 
11.         The problem in the present case was that although the judgment of the Employment Tribunal was sent on 18 February 2005.  It was not received by the Claimant’s solicitors until 1 April 2005.  It had been received by the Respondent within the ordinary timescale.  Thus, it was in the hands of solicitors on the last day for filing a Notice of Appeal pursuant to the EAT rules and practice direction.  
 
12.         A faxed copy of a complete Notice of Appeal settled by Council and containing the relevant documents in accordance with the Practice Statement of the President dated 3 February 2005 was received shortly before 6.00 pm on 15 April.  For the purposes of formal lodgement it was lodged on 18 April.  However, since I am dealing now with the exercise of discretion I am less concerned with that deeming provision and more concerned with what and when genuine steps were in fact taken.
 
13.         I heard evidence from Ms Cargill.  She had plainly not been briefed to give evidence which is indeed an unusual occurrence in the EAT.  But it is the only way in which the truth can be elicited in a case where there are disputes of fact on an issue such as this.  Crucially, she did not have her file and had some difficulty in answering questions from her recollection.  What she told me was that the person responsible for the relationship with the client, Mr Jones, was on holiday abroad from 29 March 2005.  Before he left he put Ms Cargill in control of the file.  On 17 March Mr Jones had written to the Tribunal enquiring whether there was a judgment for the timescale envisaged by the Tribunal seemed to have been exceeded.  I find that that was a prudent and understandable step to take.  The question asked by Ormerods was, is the Tribunal in a position to advise the parties when they may expect to receive the decision. There was no reply to that.  
 
14.         Using her initiative Ms Cargill, on what I find to be 31 March telephoned the Employment Tribunal to chase up this letter, in other words a fortnight later.  I find this period to be reasonable for a chase-up letter when no reply has been obtained, and within the sort of timescales I would expect of a solicitor acting conscientiously.  The next day a judgment was sent and it was received by Ormerods albeit by a solicitor in a different department that is the female specialist in employment law to whom I referred earlier.  When she received it she told the Claimant and the Claimant accepted unchallenged that the deadline for an appeal had passed.  I do not criticize her for accepting that from a specialist.
 
15.         However, the Claimant was unable to be found on that day and could not be caught up with until 4 April.  Time and again in Ms Cargill’s evidence she pointed out that the Claimant himself felt pressurized and under time constraints in order to deal with the judgment which had been described to him and to decide whether or not to appeal.  Mr Matovu in his closing submissions indicated that that was a telling point and I agree.  It indicates the earnestness with which Ms Cargill was approaching the problem.  
 
16.         What was holding up a decision on appeal was that the Claimant wanted to speak to the solicitor who had conduct of the case – Mr Jones – and he was away.  The judgment was complicated.  It is certainly complicated for a lay person: that is why his case was conducted by Counsel and solicitor.  I fully understand and respect why a lay person before launching an appeal to the EAT would wish to consult his solicitor.  As Mr Matovu elegantly points out one of the reasons for the generous period of six weeks for lodging an appeal to the EAT, as compared with two weeks on appeal to the Court of Appeal for example, is that in the latter questions of fact may be raised, whereas points of law only may be raised at the EAT.  In other words a person might easily recognize an error of fact and be able to appeal against that whereas deciding whether there was a question of law with, pursuant to the Practice Direction and the Rules a reasonable prospect of success, is one on which an ordinary lay person may require the advice of skilled advisers, as here engaged.
 
17.         It may also have been the case that funding was not in place but that was not the primary reason for the delay in obtaining the client’s instructions.  Prudently, I find, Ms Cargill also contacted Mr Matovu but at that stage there were no instructions to him.  Instructions were given on 13 April and with commendable speed Mr Matovu was able to fax back on 15 April in the early afternoon Grounds of Appeal in the form we have.  These were then sent some two or three hours later to the EAT.  In the meantime two steps which I find were wasteful were taken.  They were to write to the Employment Tribunal asking for it to extend time and for it to give extended reasons.  Ms Cargill accepted the former but not the latter as being a waste of time.  But, as by then she knew having researched the point herself, the jurisdiction is over at the Employment Tribunal and is in the hands of the EAT.  Indeed, she was told that by a member of staff on 11 April 2005.  She was told that the papers should be lodged as quickly as possible.
 
18.         I find that they were after that.  It was reasonable to obtain the client’s instructions, having received by then the written advice of Mr Matovu and the Claimant being able to consider and give a proper judgment on whether he wished to appeal.  Immediately, instructions were taken from the client, they were passed to Counsel and, as soon as was practicable, Grounds of Appeal were settled.  
 
19.         That explains the background.  What was the reason for the delay?  It was not disputed that the solicitors did not receive the judgment until 1 April.  I find in part the delay was caused by the Employment Tribunal itself.  But that also has an explanation.  The Employment Tribunal at London (Central) was moving at the time Mr Jones wrote his letter and the follow-up by Ms Cargill to the Employment Tribunal invoked the response that a response would not be obtained from the Tribunal for at least two weeks because they were moving - they have to more luxurious premises in Kingsway.  
 
20.         Let us speculate about what would happen.  Or perhaps more accurately let us re-construct what might have happened had the Tribunal acted promptly when receiving Mr Jones’ letter.  After all the Tribunal knew that the judgment had been sent and would have known that it must send another one in order to respond to this user’s request.  There would have been time on the framework which I have examined for instructions to be taken from the client.  Indeed, there would have been ample time because Mr Jones would not have been on holiday.  Counsel could have responded with its usual despatch and the Notice of Appeal would have been served.  So the real reason for the lateness in the presentation of the Notice of Appeal was the failure by the Employment Tribunal to respond to the letter of 17 March.  And I can understand problems that the Tribunal had with moving but even by then two weeks is a long time for it to be able to respond to matters sent by users.  I reject the contention that it was inappropriate of Mr Jones to write and I reject the contention that a long period of time elapsed between the letter and Ms Cargill’s response.
 
21.         The Rules allow for a period of six weeks.  Mr Matovu is correct when he indicates that the approach to these cases is regulated by the judgment of Mummery LJ in the United Arab Emirates v Abdelghafar [1995] ICR 65.   The Claimant needs to establish exceptional reasons.  There are very few authorities however, dealing with the situation where there has in fact been no receipt of the documents sent.  One does not know what has happened to this document.  But I do not find that the solicitors Ormerods were negligent or at least that their failure to tell the Tribunal of their change of address was the cause of the document not being received by it.  At the time, I find, Ms Cargill’s evidence to be right that there was contact between the two offices and the document received at the old office would have been brought to the attention of the occupants at the new office.  
 
22.         I t turn to the exercise of discretion.  Here, I am much assisted by the judgment of Burton J (P) in Sian v Abbey National plc [2004] IRLR 185 which was approved by the Court of Appeal in Chelminsky v Gdynia America Shipping Lines (London Ltd) [2004] ICR 1524.  This indicates a different approach.  It seems, as Burton J (P) said at page 17 that an unfairness would arrise in a situation where a document had not been received but that could be cured by the exercise of discretion.  
 
23.         I have considered the submissions made that there was dilatoriness by Ms Cargill between 1 and 15 April.  I reject that.  She was in a difficult position wanting instructions from the client.  She had taken steps which appeared to be reasonable to obtain Counsel’s opinion.  I would not expect a lay person with a difficult case, which I find this to be, to launch an appeal without proper consideration from those advisers who had handled his case earlier.  The steps which she took of contacting the ET may have been misguided but were not the cause of the further delay.  There may have been a delay of one or two days in the week beginning 11 April but I find that by the end of that week she had done all that she was required to do to ensure that there was a repair of the problem which had earlier occurred.   Looked at realistically what the Claimant has given up is a six-week period provided by the Rules in exchange for a two-week period.  He has been able to comply with that period and it seems to me that the interests of justice in ensuring that the parties are treated with equality of arms and that there be fairness extended to the Claimant behoves me to exercise my discretion to extend time so that the Notice of Appeal as finally lodged on 18 April was in time.  Mention was made by both Counsel of the underlying merits of the case but while they are relevant they are seldom of little weight.   And I do not find that this case is one which is so hopeless that I should treat it in the way that Sir Christopher Staughton indicated in Aziz was a possibility in such cases.  
 
24.         I would very much like to thank both Miss Simler and Mr Matovu for their very helpful submissions.  I will now give some Directions. [not transcribed].