Appeal No. UKEATPA/0848/11/ZT

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

		At the Tribunal
		On 20 February 2012

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR C RIXON	APPELLANT

METROPOLITAN POLICE COMMISSIONER	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MR ALLAN ROBERTS
(of Counsel)
Instructed by:
William Graham Law Ltd
24 Neptune Court
Ocean Way
Cardiff
CF24 5PJ		
For the Respondent
	MR SIMON CHEETHAM
(of Counsel)
Instructed by:
Metropolitan Police Service
(Legal Services)
New Scotland Yard
8-10 Broadway
London
SW1H 0BG	

SUMMARY
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Claimant who had professional advice withdrew his claim in writing and did not attend the hearing of the 10 day case.  It was dismissed at the hearing following a written application by the Respondent under rule 25.  A year later he sought to reinstate it.  The Notice of Appeal was a year late.  At a contested hearing the EAT did not accept the Claimant was in fear of physical violence and wrongful arrest and imprisonment by officers of the MPS and this was not an excuse for the late lodgement.  Muschett, Zinda and Miller applied.

HIS HONOUR JUDGE McMULLEN QC

1.	The appeal itself is an appeal by the Claimant in those proceedings against the Judgment made on 19 April, sent to the parties on 21 April 2010, the full text of which is, “The Judgment of the Tribunal is that both claims are dismissed upon withdrawal by the Claimant”.  The Claimant contends that the substance of his actions in the days preceding this Judgment is that he intended solely to withdraw his claims temporarily in circumstances that have been related to me as constituting what he says is fears of unlawful imprisonment of him and fears of violence towards him by others, including the Metropolitan Police Service (MPS).  

Introduction
2.	The Claimant is no stranger to my court; I have found in his favour on a previous occasion here, where he was represented by different counsel and solicitors, so that the gist of his complaint is set out in the Judgment that I gave UKEAT [2010] 0126, and he was ready to have this matter heard, following my Judgment, at the Employment Tribunal sitting at London Central under Employment Judge Grewal for ten days on 19 April 2010.  A very substantial number of complaints is made in the two claims.  Subsequently he has made a number of other claims, and without resistance Mr Cheetham, who appears throughout for the Commissioner, has indicated that the Claimant is no stranger to Employment Tribunal proceedings.

The legislation
3.	The relevant provisions of law and practice are set out in Muschett v London Borough of Hounslow [2009] ICR 424.  Since then the Court of Appeal have decided Jurkowska v Hlmad [2008] ICR 841, and the problems of late service have been dealt with by the Court of Appeal, upholding my own Judgment, in Miller v Lambeth PCT [2010] ICR 424 and in Zinda v Governing Body of Barn Hill Community High and Ors [2010] EWCA Civ 690, to which reference can be made in due course.

4.	The EAT requires a Notice of Appeal and all supporting documents pursuant to the Practice Direction and the President’s practice statement within 42 days of the Reasons being sent, or in this case the Judgment.  The Registrar calls for submissions if it appears for her to be out of time; submissions were made in this case.  It is not in dispute that the Notice of Appeal was constituted almost a year late, and the Registrar declined to exercise her discretion.  She said this:

“It appears that the appellant did not actively turn his mind to appeal until he wished to commence fresh litigation against the respondent.  He failed to turn up for a 10 day hearing fixed to commence on the 19th April 2010.  On Saturday the 17th April 2010 he sent a fax to the employment tribunal withdrawing his claim.  The respondent applied for the claim to be dismissed and that was granted.  The appellant does not say at what stage he wished to revive his previous allegations and at what stage he was advised by counsel to appeal the decision.  If the appellant was in any doubt as to the time limit for appeal, he should have found out what the limit was.  However he does not allege that he did not know the time limit, but that it is now convenient to him to rely on his previous claim.  See [United Arab Emirates v] Abdelghafar [[1995] IRLR 243] below ‘the appeal tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default’
I do not find that this is an acceptable excuse.”
 
The facts
5.	The Claimant parted company with solicitors representing him on behalf of the Police Federation about a fortnight before the case was due.  During the days before the hearing there was some communication with the senior officers within the MPS, and there was the intertwining of again what Mr Cheetham puts, and is not resisted, as the Claimant’s business activities in writing about fictional experiences of a police officer, for which, he told me, he is known worldwide, and the Metropolitan Police should be justly proud of itself as a result of his writings.

6.	On 16 (I infer) April 2010 Commander Kavanagh wrote to the Claimant indicating that if he were to disclose certain material, there would be serious consequences.  As a result of that the Claimant said he was in fear; his fear was of violence being done to him and of his being arrested at his home and unlawfully imprisoned as a result of unfounded allegations against him.  As a result of the communications leading up to 16 April the Claimant at once called upon his Federation representative, who attended upon him at his home on 17 April, and together they considered the position.  I have given my view in my previous Judgment of the role of the Federation, which is a trade union role, certainly a professional adviser highly experienced in dealing with employment matters in the police service. Having had a meeting with his representative, he sent a fax to the Employment Tribunal during which he withdrew the claims.  He also sent a text (or possibly an email) to Mr Boucher, who is described to me as his senior boss, who was to play a key role in giving evidence at the Employment Tribunal.

7.	So the MPS knew that the case would not go ahead on Monday 19 April.  The Claimant knew that the office of the Tribunal at Central London was shut, and so providently he rang the Tribunal on the Monday morning at about 9.00.  There is an issue as to what transpired, and I find that the Claimant has overstated the content of that conversation. He was not advised that he need not attend the hearing on 19 April, and he was not informed that the matter would be taken out of the list.  As a matter of practicality in the light of his withdrawal, the ten‑day case would become ineffective. I understand the administration of Employment Tribunals, having been an Employment Judge, and Mr Cheetham, himself a fee-paid Employment Judge, has explained to me how unusual it would be for this matter to be in the hands of a listing clerk at 9.00am on a day when the trial is due to start for ten days.  It is more likely that the file would be with the Judge, and I agree with that; certainly the Judge would have commenced her pre‑reading of the file, and the listing clerk would be in no position to tell a party that they should not attend.

8.	The matter was properly in the hands of the Judge and the decision should be made by her as to listings, withdrawals, adjournments, postponements and so on. I find that the Claimant, as he put it to me, seeking confirmation that the case would be removed from the list, did not receive that, nor did he receive advice that he should not attend. He should therefore have attended in order that any matters could have been dealt with; that was his decision.  

9.	I find implausible his account that he searched the internet himself. Bearing in mind he had, until two weeks beforehand, the services of experienced solicitors and counsel, he did not need to do this.  He told me that he had searched the internet on sites that he does not now recall, and understood that he could reinstate a withdrawn claim at any time; at one stage he believed that that was until 12 months after that, but he acknowledges that that was incorrect.  He has not indicated where this material came from; it is plainly wrong, and I do not accept that he was shown on the internet a clear assurance that a withdrawn claim could be reinstated at any time, or at least at any time within a year.

10.	I accept his contention that he did not know the difference between withdrawal and dismissal, which in itself is an arcane feature subjected to amendment by rule 25 of the Tribunal Rules. They require in sequence a withdrawal and then an application by a Respondent for dismissal, which is to be given in writing, and I accept Mr Rixon’s lack of understanding about that discrete distinction.  What he told me was that he withdrew the withdrawal because he was given assurances that he would be safe in the future, and that he could now restart, as he once put it, or reinstate, his complaints against the MPS.  He told me that he was subject to threats.  He felt that he was to be imprisoned unlawfully (I assume that is by officers of the Metropolitan Police) on commands from the highest level, and that he would be subject to violence of an unspecified nature by unspecified people.

11.	I regard that as fanciful, and I do not accept that that was his explanation.  He is at all times assisted by the Federation, he is in touch with officers at the highest level, he is in touch with the Independent Police Complaints Commission (IPCC), and the circumstances outlined in my earlier Judgment of the Claimant’s involvement in complaints against the police were of the highest profile.  I also reject his account of what the Judgment means to him.  As an experienced police officer, indeed, I do not think anybody could misunderstand the meaning of the words here, “both claims are dismissed upon withdrawal”.  There is the very distinction that is set out in rule 25 as between withdrawal and dismissal, and two separate acts are recorded by the Judge.  It is not in dispute that this was at a hearing, for Mr Cheetham was there, so was the Judge, and some of Mr Cheetham’s team.  Mr Cheetham told me that the Judge had reminded him that an application that he had made orally to dismiss the claims would have to be made in writing, and in his own hand Mr Cheetham submitted the application.  It is not available to me today, but I accept what Mr Cheetham says about it, and so the Judge on that very day made the decision in open court, and it was recorded by her that day and sent to the parties two days later.

12.	If there were substance in the Claimant’s evidence that he did not realise his claims were dismissed and that he could reinstate them, again, then he should at once have been alerted, he should have taken this to his Federation rep, and there could have been further steps taken by way of a review, for example, or he could have asked to see the written application of the Respondent.  I agree with Mr Roberts, who appears as counsel for the Claimant today, that the purpose of rule 25 is to alert a Claimant to the possibility of finality arising as a result of a written application.  Rule 11 requires written notification; other Rules require written notification, but they are subject to exceptions where an opportunity is given in open court to deal with them.  Rule 25 appears to be silent.  I observe that the formalities of rule 25 have been observed, and had the Claimant been there, there could have been no doubt whatsoever.

Conclusions
13.	I do not consider there is doubt about this and therefore, applying the principles in the authorities above, I do not accept the explanation provides an excuse for the late Notice of Appeal.  

14.	If I am wrong about that, I would consider that the period of one year is wholly excessive, and would decline to exercise discretion for such a long period of time.  The vague evidence the Claimant gave me about his feeling relief from the threats is not sufficient to indicate to me why he delayed so long in proceeding to appeal.

15.	I will dismiss the appeal from the Registrar’s orders.  I understand that has consequences for the subsequently revived allegations in what is described as either the third or the sixth claim, but that is not a matter for me to decide today.  I would like to thank both counsel very much for their assistance.