Appeal Nos. UKEATPA/0231/11/LA
UKEATPA/0233/11/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 23 November 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MISS J WHITBREAD	APPELLANT

LANCASHIRE TEACHING HOSPITALS NHS FOUNDATION TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR'S ORDER

RULE 3(10) APPLICATION – APPELLANT ONLY

APPEARANCES

For the Appeal from Registrar’s Order (PA/0233/11/LA)

For the Appellant	MISS J WHITBREAD
(The Appellant in Person)

For the Respondent	MS RACHEL WEDDERSPOON
(of Counsel)
Instructed by:
Hempsons Solicitors
Portland Tower
Portland Street
Manchester
M1 3LF	
For the Rule 3(10) Application (PA/0231/11/LA)

For the Appellant	MISS J WHITBREAD
(The Appellant in Person)
&
MR STUART RICHIE
(Appearing under the Employment Law Appeal Advice Scheme)	

SUMMARY
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Costs

While pursuing a review the Claimant did not lodge an appeal for 15 months. Discretion to extend time was refused.  At the review the judgment was correctly affirmed. The appeal against the order for costs of the review was allowed to proceed to a full hearing.

HIS HONOUR JUDGE McMULLEN QC
Introduction
1.	In respect of an appeal from a direction of the Registrar, the relevant provisions of law and practice are set out in my Judgment in Muschett v London Borough of Hounslow and Others [2009] ICR 424.  Since then, the Court of Appeal decided Jurkowska v Hlmad [2008] ICR 841.  The Court of Appeal has expressly approved my approach to appeals of this nature and the practical effect of late appeals in Miller v Lambeth Primary Care Trust [2011] EWCA Civ 722, Harper v Hopkins [2010] EWCA Civ 1246 and Zinda v Barn Hill Community High & Ors [2011] EWCA Civ 690. 

2.	The EAT Rules require a Notice of Appeal and all supporting documents as prescribed by the Practice Direction to be lodged within 42 days of the date the Judgment is sent to the parties.  The 2008 Practice Direction indicates what documents must be included.  There is no special treatment for litigants in person.  An appeal lies to a judge.  The Practice Statement in 2005 is prescriptive, requiring all documents to be served at the relevant time.

3.	An appeal against the Registrar’s decision, either that the claim was out of time or that it was out of time and that discretion would not be extended, lies to a judge.  I make my own decision on material available to me, sometimes with live evidence.  My approach to applications under rule 3(10) is informed by the Judgment I gave in Haritaki v South East England Development Agency [2008] IRLR 945, at paragraphs 1 to 13, which should be read with this Judgment.  That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. 

4.	On the sift of a Notice of Appeal, a procedural judge exercised power under rule 3(7) to conclude in chambers that the case had no prospect of success.  Where no point of law is found, s.21 of the Employment Tribunals Act deprives the EAT of jurisdiction to hear the case.  The claimant in each case is given the opportunity to amend, or to have the case heard before a judge under rule 3(10).  I form my own view on material available to me at this hearing, necessarily in the light of more than was available before the procedural judge.

Review and correction
5.	I will refer to the parties as the Claimant and the Respondent. This is an appeal from the decision of the Registrar not to allow the registration of a Notice of Appeal against a Judgment of Employment Judge Creed, as he then was, sitting in Manchester with members in a Judgment which contains the statement “Judgment sent to parties” on 29 September 2009, and there follows a signature for the Secretary of the Tribunals.  It is a Judgment of some 25 pages.

6.	The Registrar decided that the Notice of Appeal was out of time by some 15 months, and declined to exercise her discretion to extend time.  Miss Whitbread applied for a review of the Judgment of Judge Creed within the 14 days allowed for such reviews and, at the same time, knowing clearly there was difference between appeals and reviews, did not enter a Notice of Appeal.  She also asked for new evidence to be adduced.  

7.	Employment Judge Creed decided, under rule 35, that the case he had concluded should be the subject of review.  He did not hold the view that it contained no reasonable prospect of success, and therefore a review was required of him (see rule 35) and, because of Judge Creed’s elevation to the circuit bench, the decision was made that Judge Sherratt should chair the review hearing which took place over two days in 2010.  Reasons were sent to the parties on 13 January 2011.

8.	The Claimant gave evidence before the Sherratt Tribunal on review, this time with the same two members as had sat with Employment Judge Creed.  She was asked about why she did not lodge a Notice of Appeal and the Tribunal recorded the following:

“7. The claimant confirmed that she had not appealed to the Employment Appeal Tribunal in respect of the Tribunal's decision. She said she had spoken to someone at the EAT and been asked about the date when the Judgment was entered in the Register. This was not stated at the end of the Judgment however the Employment Judge made enquiries within the Manchester Tribunal office administration and told the claimant that Judgments no longer have a reference to a date on which they are entered in the Register and pointed out that the booklet which goes out with the Judgment refers to a time limit for an appeal to the EAT running from the date on which the Judgment is sent to the parties, with that date clearly being shown on the Judgment in this case. 
8. In her application for review the claimant mentioned in particular paragraph 45 on page 19 of the Judgment and the last sentence: ‘The Tribunal satisfied not he had been intricately involved in the process in the circumstances.’ There is clearly a typographical error here and the members agreed that what was meant at this point was: ‘The Tribunal was satisfied that he had not been ... ‘. On the basis that this is a clerical error the Judgment is to be amended under Rule 37.”

9.	At the same time, that is on 6 January 2011, a certificate of correction was issued by Judge Sherratt in the following terms:

“Under the provisions of Rule 37 of the Employment Tribunal Rules of Procedure 2004 a clerical mistake in paragraph 45 of the judgment on page 19 of the last sentence shall be corrected such that the words ‘The Tribunal satisfied not he had been..’ shall read ‘The Tribunal was satisfied that he had not been…’”

10.	That was the subject of a criticism by the Claimant, because she said that she was waiting for the review to deal with that matter and one other matter.  The other matter is contained in paragraph 37 of the Creed Tribunal’s Judgment, which says the following:

“37. The Tribunal was satisfied that Mr Fletcher had not acted in a way which no unreasonable employer would have done in the circumstances in his enquiry.”

11.	The Sherratt Tribunal did not issue a certificate of correction about this passage.  This passage, together with the other, has considerably vexed the Claimant.  She formed the view, as a matter of language, that the Tribunal had found that Mr Fletcher was unreasonable.  One can see why she formed that view, as a matter of linguistics.  There are three negatives in this sentence. In the context of the preceding paragraphs 35 and 36, that is wholly inconsistent. What the Tribunal plainly meant was that Mr Fletcher had not acted in a way which no reasonable employer would have done.  In other words, he acted reasonably, which is the express finding in paragraph 35.  The Tribunal was satisfied that Mr Fletcher reached conclusions which were reasonable.

12.	It is the job of courts to construe what is meant from what is said, apparently inconsistent with the intent.  See the deathless enunciations of this by Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, and Mannai Investment Co Ltd v Eagle Star Life Assurance Co [1997] AC 749.  Indeed, Miss Whitbread herself this morning jumbled up unreasonableness in her statement to me, and it is easily done.

13.	I know of no legal formulation in which there appears the phrase “in a way in which no unreasonable employer would ...”.  Everybody familiar with the trade usage would know that the word “unreasonable” here means “reasonable”.  Looking at paragraph 37 in its context, that is the only meaning. Miss Whitbread may be dissatisfied that the Tribunal has not altered this minor matter, and I will make the correction which she so earnestly sought, so that it will read “reasonable” rather than “unreasonable”.  Of course, on that basis the Claimant’s case is weakened on appeal.

The late Notice of Appeal
14.	Fifteen months separated the Judgment and the review, and the first issue to determine in this case is whether the Notice of Appeal was out of time.  The Registrar found that it was.  There is no doubt about that.  Ms Whitbread could not say that she had put in a Notice of Appeal any earlier than she did and the Registrar’s finding as a matter of fact, that the appeal was received on 22 February 2011, is correct.

15.	The contention by the Claimant was that she perceived errors of law only when she received the review Judgment, and she had appealed timeously.  The evidence which she gave afresh to me related to the period between the promulgation of the Judgment, on 29 September 2009, and the review.  The primary period is the 42 days following 29 September, which expires on 10 November 2009.  She told the Judge Sherratt what she told me, and upon which she was not challenged by Ms Wedderspoon, for very understandable reasons.

16.	What the Registrar made of this is as follows:

“Although the Appellant claims there were legal errors she has now had the opportunity of a thorough review of her case. The Appellant was asked at the review why she had not appealed to the Employment Appeal Tribunal and stated that Employment Appeal Tribunal staff asked her when the case was entered in the register and the judgment carried no date for this. The Employment Appeal Tribunal is only interested in the date that the judgment and written reasons were sent to the parties as it calculates time from that date. It is probable that the Employment Appeal Tribunal staff would not be aware that there is an employment judgment register and it is most unlikely that they would ask this question. Significantly, she took the matter no further in any event. If she was in any doubt about how to appeal, there is help available from a number of sources and also on the internet. Merely putting "appeal from the employment tribunal" into the GOOGLE search engine will bring up links to the Employment Appeal Tribunal website with its comprehensive advice as the first result. She also had a copy of the Judgment booklet. 
There comes a time when litigation is stale and it must be final. The Appellant chose not to appeal the judgment of the 29th September 2009 and cannot now complain if she believes that she should have.”

17.	The Claimant criticises the way in which (what she describes as) the Registrar’s stock answer and decision is phrased, in particular the citation by the Registrar of the Judgment of Rimer LJ in Jurkowska.  For there is a reflection about people who, through idleness, fail to put their case in on time.  Having heard the Claimant’s explanation, it certainly was not idleness which caused her to delay.

18.	She knew there was a 42 day deadline.  She knew the difference between an appeal and a review.  As she correctly put it, “questions of fact are for review, and questions of law for an appeal”.  She also told me that she did not know whether there were questions of law to be raised, and recited the response of the EAT.

19.	The Registrar doubted whether that information would be available to a case manager of the EAT.  This threw up the problem which Judge Sherratt investigated, which is whether or not the words “entered in the register” appear on the Judgment, and in Manchester those words have now been dropped.  Yet elsewhere in the realm, the tribunals, as recently as six months ago, were using different formulations, some of which included “entered in the Registrar”.

20.	The central point of the Claimant’s case was that she was waiting for the review to put right the two grammatical issues which I have dealt with and, in that case, would then consider an appeal.  In my judgment that is not a reasonable stance to take.  The corrections are minimal and do not change the result. The rules are clear.  The booklet and the leaflet which she was given indicate that the time begins to run, for an appeal and for a review, from the date the Judgment is sent.

21.	The leaflet provided by the EAT dating from 2007, which I accept she was given, uses the word “datestamp”.  There is nothing about “entered in the register”.  Accepting as I do her evidence to me, that she was told by an officer of the EAT that there should be a date stamp when it was registered by the Employment Tribunal, is that sufficient to exercise discretion in her favour?  I entirely disagree with the Registrar that such was unlikely and improbable. The case managers of the EAT draw up the orders of the court.  Every order I and the Registrar have made, and every judge and registrar before us since 1976, contains the legend “in the matter of an appeal against a Judgment of an Employment Tribunal sitting at XX and entered in the Register on YY”. The fact that Employment Tribunals do not do that now does not alter the usage of the EAT.

22.	However, albeit a litigant in person, she had previous access to a solicitor.  She had the documents which say nothing about registration in the Register of Judgments. They all say “time runs from the date the document is sent”.  The Creed Judgment actually uses those words.  It is effectively a date stamp and it is signed by the judge.  The Claimant should not have simply taken what a case manager at the EAT said.  It is not their job to advise parties on issues such as jurisdiction, which would depend on a Notice of Appeal being sent.

23.	This was a valid Judgment of the Employment Tribunal.  The Claimant should have registered an appeal within 42 days after 29 September 2009. Since in November 2009, Judge Creed ordered a review, the appeal in the EAT would simply have been stayed until the outcome was known and then it would have become live again.  In the course of deciding whether to exercise discretion, I have been addressed by both the Claimant and Ms Wedderspoon of counsel, on the merits of the case.

Merits and discretion
24.	The Claimant accepts that the basis of the appeal is the Notice of Appeal which she had submitted.  She hoped that there may be some further shriving time to allow a new Notice of Appeal to be put in, but that is not the law.  The Notice of Appeal which is before me is short and, on Ms Wedderspoon’s contention, contains no questions of law to be decided.  The issues about which she complains are questions of fact - as she puts it, the bias of the Employment Tribunal in siding with the Respondent.

25.	The merits of an appeal are rarely before a judge hearing a case like this, but the jurisdiction plainly exists for a decision to be made where the claim has no merit (see the statement by Sir Christopher Staughton in Aziz [2000] IRLR 111 CA).  The Judgment in this case is very thorough.  I reflected with Mr Stuart Ritchie of counsel, giving his services under the ELAA Scheme, on possible outcomes of today’s hearing.  He is here only for the next stage, which is the rule 3(10) application against the decision of the Sherratt Tribunal on review, but he took time to take instructions from Ms Whitbread, and I canvassed with them both what would happen next.

26.	If I were to extend time, the matter would go before a judge on the sift.  Most likely it would come back to me, because I have spent so much time on this.  If I were to decide against the Claimant on paper, she would have an opportunity to come down from Manchester again and put the case before a different judge.  She told me how wearing this process is; it has gone on a very long time.  She is running out of money, she has dependant care, she is without work.  Having expressly instructed Mr Ritchie for this purpose, he told me that she would wish me to conduct what I describe as a rolled-up rule 3(10) hearing, if so minded and, on the basis of that, she addressed me on the merits of the case which would emerge if there were to be a rule 3(10) hearing.

27.	In a sense I understand the merits because of the way in which the case was developed at the Registrar’s appeal, the merits being properly before me as argued by Ms Wedderspoon.  In my judgment, the primary decision for me to make is one of discretion and I see no reason to extend time in the circumstances of this case.  The Claimant was plainly waiting for a review but that is not the way in which these appeals should be conducted.

28.	If I am wrong about that then, in accordance with the overriding objective, I have now conducted a rule 3(10) hearing, during which the Claimant has addressed me fully on her written materials.  She has also looked at the written submissions of Ms Wedderspoon, arguing against the merits of the appeal.  Generally a rule 3(10) hearing is a Respondent-free zone but I have been introduced to some of those submissions, in respect of my first hearing.  I would be setting the Claimant on a highway to nowhere, if I were to send this to a hearing, because I know precisely the way in which the case would be argued by the Respondent.

29.	In my judgment there is no reasonable prospect of success and, if properly seised of a rule 3(10) application, I would dismiss it. I have conducted this with the agreement of the Claimant in order to be expeditious, and so if I am wrong about the exercise of my discretion on time, then the result would be that the case would be finished at a rule 3(10) hearing.

The appeal against the review
30.	I then turn to the Notice of Appeal in respect of the review.  For this, I have had the assistance of Mr Ritchie’s submissions on one point, which is to do with costs.  The Claimant had lost her case of discrimination on the grounds of jurisdiction at an earlier stage at the Creed Tribunal, in respect of constructive unfair dismissal.  She sought to introduce new evidence which the Tribunal, in my view, correctly disposed of. She sought to raise grounds for review. 

31.	The Sherratt Tribunal was alert to avoiding two bites of the cherry (see paragraph 17 of its Reasons). It summarised accurately the Claimant’s grounds for a review (see paragraph 15), and disposed of each of them.  The Tribunal’s reasoning is dealt with analytically, point by point on the case the Claimant made and, effectively, the Claimant seeks a rehearing of her case.  Some of the points were dismissed because they were already before the Creed Tribunal.  Some of them were matters of procedure.  None of them, in my judgement, contains an error of law.  They are matters of case management, discretion and so on.  The Employment Tribunal said this:

“27. The claimant was clearly not happy that she lost her claim against the respondent but she seems to have had a fair hearing and nothing she has put in her written and/or oral submissions persuades us that her review application should succeed other than in respect of the minor slip which results in amending one sentence within the Judgment.”

32.	So the Respondent activated its letter before the review, threatening costs if the Claimant lost.  What we know about this is as follows:

“28. Following the claimant's review application being dismissed the respondent has made an application for costs of the review on the basis that the claimant has acted unreasonably or the bringing of the review application has been misconceived. The claimant opposes that application for costs stating that under Rule 35 Employment Judge Creed considered the application initially and would have refused it had he considered there were no grounds for the decision to be revoked under Rule 34(3) or if there was no reasonable prospect of the decision being varied or revoked. 
29. Against that background the respondent wrote to the claimant a detailed letter once the application had been made. It was sent without prejudice save as to costs but it set out in detail why the claimant's application would not, in the view of the respondent's solicitors, succeed and it told the claimant if she persisted with her application that there would be an application for costs. The claimant was therefore aware from the outset of the respondent's position if they succeeded they would apply for costs. That was ventilated at the hearing in August when the Employment Judge reminded the claimant of it because he had seen in the respondent's written submissions that a costs application would be made should the claimant not succeed and it was made at the end of the hearing in December. 
30. The letter sent on 9 December 2009 by the respondent's solicitors, set out, in our view, a reasoned and reasonable response to the claimant's application for a review. The claimant has persisted involving a hearing over two days with a considerable volume of correspondence being generated whilst well knowing that if she lost there would be a claim for costs. The respondent is a public body and therefore feels it has a duty to try to maximise its income. 
31. We have considered the application and consider that a costs order is appropriate on the basis that the claimant's review application was misconceived. We may and indeed have taken into account the means of the claimant, who tells us that she has an income that is exceeded by her expenditure but she has a house that she has lived in for 25 years which is an asset. We do however note it is lived in by her and her two children so we hope whatever order is made will not mean that the respondent will take any precipitate action that would prejudice that. But taking into account those means we take the view it is appropriate the claimant pays the contribution of one half of the respondent's costs of the review in the sum of £4,429.”

33.	The submission by Mr Ritchie is that this constitutes an error of law.  I reminded him of the recent Court of Appeal decisions in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, Dean & Dean Solicitors v Dionissiou-Moussaoui [2011] EWCA Civ 1332, and Arrowsmith [2011] EWCA Civ 797, the gist of which is that appeals on costs should not lightly be allowed.

34.	He points out, however, that if given permission to advance this point, there are legal issues to be raised.  He very frankly acknowledged that there is no discrete ground of appeal and would need permission to amend.  I am prepared to operate on the basis that I will give permission to amend, subject to any objection by the Respondent in due course, and that this point can be taken to a full hearing.

35.	It seems to me that there is no direct consideration here of the word “misconceived”.  It is not impossible for a case to be sent to a review and yet be misconceived.  But it does require, in my judgment, a careful explanation for that, given that Judge Creed, who heard this case over many days, ordered the review which, by definition, means that it cannot be said it had no reasonable prospect of success.

36.	The second issue relates to the Claimant’s unreasonableness in bringing the application.  Again, more is required if it is to be said that it is unreasonable to bring the application, it having passed the test of rule 35(3).  Mr Ritchie says with some force that this Judgment required more careful attention, given that it was Judge Sherratt’s Tribunal making the order for costs, and not Judge Creed and his Tribunal. In those circumstances, it seems to me that the Tribunal may have erred in making the award of costs on the material which was there, and so this case will go to a hearing.

37.	As to the remainder of the Claimant’s appeal under rule 3, I respectfully agree with the opinion given by the President under rule 3(7), which is in the following terms:

“Insofar as the Appellant is challenging the reasoning of the original Tribunal decision that can only be pursued by an appeal against that decision: I understand that such an appeal has been lodged but it is out of time.  The appeal against the review decision must be on the basis that that decision was itself wrong in law, for some reason other than the alleged defects in the main decision: in other words, the appeal cannot be used to piggyback an appeal against the main decision.  I cannot see anything even arguably wrong with the review decision.  The Tribunal went carefully and fairly through the Appellant’s arguments.  I cannot accept that two days were not long enough or that the absence of Judge Creed’s notes made the process unfair.”

38.	Now, knowing so much more about this case than the President did, I independently come to the same conclusion as he did.  He did not, however, expressly consider the costs point.  How could he, when it was not discretely earmarked?  Now it has been, with the skills injected by Mr Ritchie, then, save for that, I agree with him.  On my asking both counsel, in accordance with their duties, whether there was any correction needed to the Judgment, there was silence.

Result
39.	The appeal from the Registrar is dismissed. The rule 3(10) application in part succeeds, on the costs point.