Appeal No.UKEATPA/1675/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 June 2008

Before
THE HONOURABLE MR JUSTICE UNDERHILL
(SITTING ALONE)

MR C ECHENDU	APPELLANT

WILLIAM MORRISON SUPERMARKETS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

REVISED

	APPEARANCES

For the Appellant	MR C ECHENDU
(The Appellant in Person)	
For the Respondent	MR D MARTIN
(of Counsel)
Instructed by:
Messrs Gordons LLP Solicitors
Riverside West
Whitehall Road
Leeds LS1 4AW

SUMMARY
PRACTICE AND PROCEDURE:  Time for appealing
Appeal against decision of Registrar that application under rule 3(10) of the Employment Appeal Tribunal Rules 1993 out of time and refusing application for extension – Appeal refused – Held (1) that 28 days for filing of application runs from date of sending of rule 3(7) notification and (2) that Appellant had shown no sufficient ground for an extension.

THE HONOURABLE MR JUSTICE UNDERHILL
1.	This is an appeal against the decision of the Registrar refusing an extension of time for service of an “expression of dissatisfaction” under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended).  For convenience I will refer to such an expression as an application for an oral hearing though that is not in fact the terminology used in the Rules.

2.	The Appellant Mr Echendu appears before me in person.  The Respondents are represented by Mr Dale Martin of Counsel. 

3.	The relevant facts can be stated shortly.  The Appellant has appealed against the decision of an Employment Tribunal dismissing claims of constructive unfair dismissal and under the Race Relations Act 1976 and directing him to pay costs to the Respondents.  He was notified pursuant to rule 3(7) that his Notice of Appeal disclosed no reasonable grounds of appeal.  He then lodged a fresh Notice of Appeal in accordance with the provisions of rule 3(8) but by letter from the Registrar dated 27 February 2008 he was notified that HHJ Clark had decided that that notice also disclosed no reasonable grounds.

4.	Rule 3(10) provides as follows:
“Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, an appellant or special advocate expresses dissatisfaction in writing with the reasons given by the judge or Registrar for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the notice of appeal or document under paragraph (5) or (6) [my underlining].”

5.	On the assumption, to which I shall have to return in due course, that the Registrar’s letter was sent on the day that it was dated, that is to say 27 February, the time for applying under rule 3(10) expired at close of business on Wednesday, 26 March 2008.  The letter of 27 February purported to attach, as indeed had the previous rule 3(7) letter, a copy of rule 3 and I have no doubt that it did so.

6.	By a letter bearing the date 25 March 2008 the Appellant expressed dissatisfaction with HHJ Clarke’s conclusion and sought a hearing under rule 3(10).  That letter was received by the Tribunal on 28 March 2008 and was, accordingly on the assumption to which I have already referred, two days out of time.

7.	By letter dated 1 April 2008 the claimant wrote to the Tribunal applying for an extension.  He said this:
		“With reference to your letter of 31 March 2008 [that is to say the letter notifying him that the application was out of time] in respect of the above referenced case, I write to apply for an extension of time in accordance with the provision of EAT Rule 37(1) if my letter of 25 of March is deemed to be out of time.  

		I am very much conscious of the 28 days rule, however your letter of 27 February was received on 29 of February and not being represented legally, I was of the view that 28 days runs from the next day the notice is received.  

		This, coupled with the primary reason that we are on exam period, I wrote the letter on 25 March 2008 out of my tight schedule to meet up with the submission of my assessed essays, I gave the letter to my wife to post it by express mail, unfortunately she failed to post it on that day, and when I was notified I quickly posted it by one day express registered mail, with the belief that its receipt by of 28 March 2008 would be within the 28 days rule.  

		Taking the cognizance of the above circumstances and my belief in pursuit of a remedial cause to the EAT, I humbly apply for the extension of time as provided by Rule 37(1) of EAT so that my letter of 25 March which was two days of time be extended as it is just and equitable in lieu of the above mitigating circumstances.”

8.	It is not entirely clear whether the Appellant is to be taken in that letter as accepting that his claim was out of time, but his position on that has been developed subsequently.

9.	By order dated 10 April 2008 the Registrar refused that application.  Since the appeal to me is by way of a rehearing I will, without disrespect to the Registrar, not set out her reasons here.
10.	In his skeleton argument before me, the Appellant repeats essentially the same points as appeared in his original application although they are somewhat amplified.  At paragraphs 14 ‑16 of the skeleton argument, he sets out his reasons for the delay under three headings as follows:
	“14 (a) 	The appellant received a letter containing the decision on the 29th of February 2008 along with Practice Direction.  The letter was not stamped to strike any thought of time sent.  The appellant looked into the practice direction to Paragraph 9.6 which concerns with the next action expected of a person appealing under Rule 3(10).  It provides in the middle paragraph … Reasons will be sent and within 28 days the appellant may submit a fresh Notice of Appeal… or request for oral hearing before a Judge.  The appellant genuinely and reasonably believed that what is contained in the Practice Direction should be followed and acted accordingly albeit on pressure.

	15 (b)	The appellant was writing first semester exams, and also was writing assessed essays to be submitted on March 13, 2008 - 3,000 words Criminal Law, 15,000 words of dissertation drafts must be presented on 17 March 2008, 2,500 words of Employment law to be submitted on 14 April, 3,000 words of Land Law to be submitted on 21st of April [and he attached some official notice from the university confirming that].  The appellant is a final year law student.

	16 (c)	The appellant managed to draft a simple letter on 25 March 2008 gave the letter to my wife to post however due to oversight failed to post it on that day.  The appellant on the other side was under serious stress and unfocused, could not think of faxing the one page letter owing to exam stress although the appellant had his honest believe that he was still acting within the time which is here arguable.”

11.	Insofar as those paragraphs state matters of fact, the broad thrust of what is being said is adequately clear though not perhaps very elegantly expressed, but it is not clear exactly what the Appellant says that his state of mind or knowledge was on the crucial dates.  That is clarified to some extent but not wholly in his oral submissions.  If I had found it necessary to resolve those uncertainties or to decide whether those statements of fact were truthful, which certainly could not be automatically assumed in view of certain findings made against him in the decision of the Tribunal, I would have required him to give evidence on oath and submit to cross-examination.  However, for reasons which will appear, I have not in the end found that necessary.

12.	Insofar as those passages make submissions of law, again it is not entirely clear how they are put, but the Appellant in his oral submissions made it clear that his grounds were under two heads - first that the application was not out of time in the first place; and secondly, by way of alternative, that if it was then the discretion to extend time should be exercised in his favour.

13.	As to the first question, I regard it as quite clear that time for the service of an application under rule 3(10) runs from when the notification under rule 3(7) is sent by the Tribunal and not from when it is received by the party.  The words of the rule, which I have underlined in setting it out above, are quite explicit.  

14.	In theory, the question arises of how the date of sending is to be proved.  The Rules contain no provisions expressly dealing with this.  The Appellant refers me to paragraph 1.9 of the Employment Appeal Tribunal Practice Direction 2004, being the version in force at the relevant time, which provides that “Any reference to the date of an order shall mean the date stamped upon the relevant order by the EAT (‘the seal date’)”.  However, that provision does not purport to relate to the date of the sending of documents from the Tribunal and specifically is concerned only with orders.  In any event, of course, the Practice Direction does not have the status of Rules.  It is of course common, as the Appellant pointed out to me, for Employment Tribunal judgments and reasons to bear a formal stamp showing separately the date at which the document in question was formally signed and the date, which may well differ by a few days, on which it was sent to the parties; but again there is no provision for such a procedure to apply to correspondence of the kind with which we are here concerned.

15.	I am bound to say, however, that any theoretical difficulty about establishing the date of sending of a notification under rule 3(7) ought not in the ordinary case to give rise to any difficulty in practice.  Where the envelope is available, the postmark will of course constitute authoritative proof of the date of sending.  No doubt, however, as the Appellant says was the case here, parties do not routinely look at the envelope for such a purpose or keep it so that it can be consulted subsequently.  But even in the absence of the postmarked envelope an ordinarily prudent person, appreciating that time runs from the date of the sending of the letter, will proceed on the assumption that the letter was sent on the date that it bears.  That assumption will, as a matter of common sense and common experience, generally be right, though no doubt in some cases a letter typed on one day will not be sent out until the next working day or even very occasionally later than that.  I understand from enquiries made that it is certainly the practice in the office at this Tribunal that letters will be sent out on the date that they bear, though there may be some exceptions.  However, my point does not depend on any knowledge of the procedure of this Tribunal but, as I say, on common sense and common experience.  Acting on that assumption will give a simple and certain rule and will not in any significant way prejudice the recipient.  At most, he may “lose” one or two days out of the 28‑day period that he has in which to respond.

16.	In any event, this question is wholly academic on the facts of the present case.  The Appellant accepts that he received the rule 3(7) notification on 29 February.  It can therefore only have been sent out either on 27 February, being the date that it bears, or on 28 February; and in either case he would still be out of time, if only by one day rather than two.  

17.	I therefore have no hesitation in rejecting the Appellant’s first submission.  I turn to the question of whether the time for applying under rule 3(10) should be extended.  

18.	The principles governing applications for an extension of time in this Tribunal are well known and have recently been reaffirmed, subject to some minor qualifications and clarification, in Jurkowska v Hlmad Limited [2008] IRLR 430.  I need not set them out here. 

19.	The starting-point, of course, is that a person in the position of the Appellant is in breach of the rules, which in this Tribunal are applied strictly.  An extension is an indulgence.  It is for him to show good reason why such an indulgence should be granted in his case.  It is not enough that he missed the deadline by a short time, as was certainly the case here whether it was one day or two.  There are many cases in which extensions have been rejected after only very short delays of that order or even less.  Nor is it enough that the delay has caused no prejudice to the Respondent.

20.	I should note for completeness one potential distinction between the facts of the present case and those of most of the reported authorities in this field, namely that the delay was not in the instituting of the actual appeal but in proceedings subsequent to the institution of the appeal.  I cannot regard that as requiring a different approach.  Compliance with the time limits required under rule 3 remains of real importance.  They are not concerned merely with administrative or preparatory matters such as lodging bundles or skeletons but with the substantive question of whether the appeal should be allowed to proceed at all.  I note in passing, although this particular point was not argued, that the so-called Abdelghafar approach was applied by Sir Peter Gibson sitting in the Court of Appeal in the case of Morrison v Hillcrest Care Ltd [2005] EWCA Civ 1378 when refusing permission to appeal in a case involving a missing of the deadline under rule 3(10).

21.	I would also add that, as Mr Martin pointed out, the limits provided for rule 3 are far from onerous, and a party wishing to make an application under rule 3(10) has no less than 28 days to do so, and if he is seeking an oral hearing all that is required is a very short letter so stating.

22.	Applying those well-known principles, therefore, to the facts of the present case, I do not believe that the Appellant has discharged the burden on him.  I do not regard either element of the reason which he gives for missing the deadline as good.

23.	Dealing first with the fact that his wife failed to send his letter of 25 March on that day as he asked her, he does not in fact explain with any precision how the “oversight”, whether on her part or his, arose; but forgetfulness on the part of a party or his associates, whether they be lawyers or employees or family members, or a misunderstanding or failure of communication between them, is not by itself a good excuse for missing a deadline.

24.	The Appellant mentions, as I have set out, the fact that he was under a lot of pressure at the time because of his exams and the deadline for submitting essays and his dissertation.  However, as I have already observed, the work involved in lodging an application for an oral hearing under rule 3(10) is extremely limited, nor is it difficult to arrange for the sending of a letter and, if necessary, to check that it has been sent.  He had of course a period of 28 days in which to do so and he left it to the very end of that period before considering the simple step that was all that was required of him.  Exam pressure is in any event not different in kind from the sorts of administrative pressure or the like stresses in a busy office which have been held not to justify an extension in other cases.

25.	As for the alleged lack of clarity in paragraph 9.6 of the Practice Direction, it is on the face of it unclear how that is said to have contributed to the missing of the deadline.  If the letter of 25 March had been posted on that day, as the Appellant intended, he would have been in time and it was because the letter was not so posted that the deadline was missed.  However, what I understand the Appellant to say is that if he had realised that the deadline was 26 March, he would have had the letter sent by fax, or at least done so when he realised that his wife had failed to post it in time.  That argument still depends on the proposition that the Appellant’s misunderstanding of the position was venial.  I am afraid I cannot accept that.  He refers to the terms of paragraph 9.6 of the Practice Direction which, after referring to the fact that the judge or the registrar may decide that there are no reasonable grounds for an appeal, says this:
		“Reasons will be sent and within 28 days the appellant may submit a fresh Notice of Appeal for further consideration or request an oral hearing before a judge.”

It is not in fact very clear what the Appellant says that the misunderstanding on his part was:  the skeleton is certainly not explicit on the point.  But it appears from the terms of his original application, and I think from his oral submissions before me, that he is saying that he thought the deadline expired on 28 March because the 28 days ran from the date the rule 3(7) notification was received by him.  I can see no warrant for such a belief in the terms of paragraph 9.6.  It is true that it does not say in terms that the 28 days run from the date that the notification is sent rather than the date that it is received, but that is the only natural reading if the question is posed at all.  I note in particular that the reference is to reasons being “sent”.  In any event, the Practice Direction is not authoritative.  Any party who still felt in doubt about the matter could and should look at the terms of rule 3(10) itself which are, as I have said, quite explicit.  It is important to note that the Appellant was sent a copy of the rule itself with the rule 3(7) notification.  In the course of his oral submissions he appeared to say that it had not been sent to him either on that occasion or indeed with the prior rule 3(7) notification.  He said that all that he had received was the Practice Direction.  That struck me as very surprising.  When I pressed him about this, he modified his position somewhat and said that he could not swear that he had not received the terms of rule 3; and, as I have said, I am sure that he did.  Accordingly, I do not believe that there were any reasonable grounds for the Appellant to be confused as to the time limit, even assuming in his favour that he was.  

26.	In my judgment, therefore, the Appellant’s application must fail on the straightforward ground that he can show no good excuse for missing the deadline - and, I would add for completeness, because there are no exceptional circumstances equivalent to those that were present in the Abdelghafar case, why, even in the absence of a good excuse, this application should be allowed to proceed.

27.	If it were necessary, which I do not believe that it is, I would also put into the balance the fact that on a broad general assessment of the revised Notice of Appeal - it can be no more than that and I have not invited detailed submissions - the prospects of the rule 3(10) application succeeding even if it were allowed to proceed appear poor.  The Notice of Appeal, though framed as raising a number of points of law, seems wholly or mainly to be a challenge to the Tribunal’s factual findings.

28.	The Appellant referred me to a number of authorities but I do not find it necessary to review them in this judgment.  The relevant principles are, as I have said, plain and adequately appear from the Jurkowska decision to which I have referred and the earlier decision in Abdelghafar which it endorses.  Most of the authorities which the Appellant cited to me were concerned with other provisions entirely, notably with the provisions relating to reasonable practicability in the unfair dismissal legislation or with clearly distinguishable factual situations.

29.	The Appellant also emphasised that he was a litigant in person and not a lawyer; but the authorities emphasise that ignorance or misunderstanding of the relevant law on the part of a litigant in person is not by itself a sufficient ground for granting an extension.  Here, he was given all the relevant materials on which clearly to understand the applicable time limits.  I would also add, though again this is not central to my decision, that as a final‑year law student he is not a person who ought to have been bewildered by legal procedures.

30.	For all those reasons, this appeal is dismissed.