Appeal No UKEATPA/0716/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 October 2004

Before
HIS HONOUR JUDGE McMULLEN QC

MR L CHIGBUNDU	APPELLANT

1) CENTRAL TECHNOLOGY COLLEGE 

2) MR P MONNELLY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MR L CHIGBUNDU
(the Appellant in Person)	
For the Respondents	MR ANDREW TWINEHAM
(Solicitor)
Messrs Jacksons Commercial & Private Law LLP
Innovation House
Yarm Road
Stockton-on-Tees
TS18 3TN

SUMMARY

Claim stuck out by Employment Tribunal for unreasonable and contumelious conduct and delay.  No grounds to overturn Registrar’s decision that the Notice of Appeal was out of time appeal and leave should not be given to extend time.

HIS HONOUR JUDGE McMULLEN QC

1.	This is an appeal from the Registrar against her decision that the grounds and Notice of Appeal were lodged out of time and she would not exercise her discretion under Rule 37 to extend time.  Time for presentation of a Notice of Appeal substantially in accordance with Form 1 in the EAT Rules is 42 days from the date of the promulgation of the Tribunal decision.  The Notice must include grounds and a copy of the Extended Reasons for the decision complained of.

2.	I will refer to the parties as the Applicant and the Respondents.  It is common ground in this case that by the latest 12 May 2004 those requirements had been met.  The Decision appealed against was sent to the parties on 20 February 2004.  Never far from the forefront of my mind as a matter of custom here but also as a matter of forceful submission by the Applicant is the fact he is a lay person representing himself and his opponent is Mr Twineham, a solicitor who has represented both Respondents throughout these proceedings.

3.	I am not concerned with the substantive issue between the parties but it is necessary for me to say just a word or two from my understanding of the background.  The Applicant is a teacher of English who raised claims of race discrimination and other matters.  The summary of the proceedings which then took place is given by the Chairman, Mr C G Toomer in his decision which is the subject of the Registrar’s judgment.  The Applicant’s case was heard and dismissed.  The Applicant appealed. It was dismissed by His Honour Judge Pugsley and members at a preliminary hearing.  The Applicant then sought a review, which was granted by Judge Pugsley on 21 November 2001.  He said this:

“We have done it purely on the basis that we have now been told matters that are before us, but we must emphasise, it is no good coming to this Tribunal; getting the relief that is sought and then not appearing at future times. If the Appellant wants to pursue this case, he is going to have to put it as a high priority. The Appellant cannot expect indulgence always to be exercised. These are two sides to every question, and the interests of the school, who not doubt vigorously oppose this, has to be considered as well.”

4.	Life was therefore breathed into the Applicant’s case and subsequently a full hearing was conducted before His Honour Judge Prophet and members where the Applicant appearing in person succeeded.  The matter was sent back to the Bristol Employment Tribunal for a freshly constituted Tribunal to consider the matter.  There was a hearing for directions in April 2003; the Applicant did not attend because it was said that he was unfit.  The Chairman ordered the Applicant to produce medical evidence and dates were set for a substantive hearing of 4 days to begin on 24 September 2003.  The Applicant did not attend.  There was an issue about whether or not the Second Respondent, Mr Monnelly, would be available since he was unfit.  On 25 September 2003 the Tribunal received a letter which said as follows in the Reasons of the Employment Tribunal:

“6.	
"Lenin [i. e. the applicant] dropped a note into me this morning, stating that he required a letter to excuse him from attending a hearing on Monday 29th September. He feels that he is unable to attend because of insomnia and stress which is partly related to the last minute changes that were made to the date of his hearing. He tells me in his letter that he would be able to attend in the foreseeable future. 
Mr Chigbundu last attended this surgery on 1st August when he was diagnosed as having a mild depressive episode with insomnia being a key component. He described low mood and stress at work. He was commenced on amitriptyline 10 mg each night. 
I would be grateful if you could take his condition into consideration." 
A postponement on the basis of that document was refused as the document did not say the applicant was in fact unfit to attend, but on the morning of the hearing the tribunal received a further fax from the doctor which said:- 
"I would like to confirm that Mr Chigbundu is unfit to attend tribunal for reasons stated in my previous letter." 
This followed further correspondence from Mr Chigbundu to say either that he was unlikely to attend or that he would not attend and that it was essential that there should be a postponement. The conclusion of the tribunal was that it would not be appropriate to proceed in the face of a document, however brief, which indicated that the applicant was medically unfit to attend, and accordingly the matter was postponed and by a further telephone Interlocutory Hearing (which the applicant did not attend) directions were given for a re-Iisting of the matter later during the course of 2004.”

5.	On that basis a postponement was refused.  The Respondents then made an application to strike out the Originating Application because there had come into their possession some evidence which indicated that, despite what the medical report had said, the Applicant was not in fact unfit and he was actually at work on the first day of the hearing in Bristol.  The Chairman examined the material supporting that and came to the conclusion that the Applicant’s credibility was considerably in doubt.  He was not satisfied on the balance of probabilities that the Applicant was unfit to attend and that he had given incorrect information to his doctor.  He said this:

“10.	It is quite clear from the further contents of the faxed document received this morning that Mr Chigbundu still regards Mr Monnelly's absence as a crucial matter and it is still clear that he is determined that Mr Monnelly must be called as a witness in order to answer cross-examination, despite what has been said about the respondent's clear intention not to call him and the reasons why. It is my view on the evidence that it is more likely than not that Mr Chigbundu deliberately misled the tribunal about his fitness to attend and conduct his case, in order to achieve the postponement which he had been unable to obtain on the basis of Mr Monnelly's unavailability.”

That persuaded the Chairman that the Respondents’ application should be accepted, that the Applicant was indeed acting unreasonably and that the case should be struck out pursuant to Rule 15 (2) (d) on the grounds of unreasonable conduct.  It was identified as follows:

“11.	It is difficult to think of a more unreasonable piece of conduct than to obtain adjournment of a 4-day hearing which Mr Chigbundu knew was not to be adjourned upon the basis of his earlier applications, by alleging, falsely, that he was not fit to attend and persuading or fooling his doctor into supporting that suggestion. As a result, the respondent attended the hearing with its witnesses to no effect. A great deal of time, trouble and cost came to nothing on that morning; and even now I cannot have any faith in Mr Chigbundu'.s commitment to attend a hearing unless he is assured that Mr Monnelly will be present which it is clear he will not be. The whole tenor of the correspondence which has been brought to my attention leads me to that conclusion. These matters are already extremely stale, which in Itself makes a fair trial increasingly  difficult, and in my view the applicant's attitude, as evidenced by his correspondence and conduct so far, is likely to prejudice substantially the chance of a fair hearing in the future.”

6.	In addition to that power, the Chairman had power under Rule 15 (2) (e) to strike out for want of prosecution.  The Chairman reminded himself of the powers which would be regulated by the judgment of the House of Lords in Birkett v James [1978] A.C. 297.  Notwithstanding the direction given by Judge Pugsley (to which I have already referred) the Chairman noted that the Applicant had not conducted his case with a timely despatch and held that the reason for the delay was both inordinate and inexcusable and there had been intentional and contumelious default by the Applicant.  If it were necessary to strengthen his case view on the first point, then his approach to the second would be relevant.

7.	The Chairman struck out the Originating Application on the ground of ordinate delay as well.  The Applicant was dissatisfied with that and on 25 February 2004 presented a letter, described as without prejudice, to the Registrar.  In this he says (so far as is relevant):

“Dear Sir/Madam, 
I am writing to request a review of my case on the following grounds.
1.	The decision was taken in my absence.
2.	It is in the matter interests of justice that this case be reviewed.
3.	New material has been materialized to buttress my case to a reasonable degree.”

There is then a reference to the judgment of the EAT, that is referring the matter back to the Employment Tribunal.  He ends by saying:

“13.	.Bristol IT must remain focused on the procedure or indicate an unwillingness to proceed any further so both parties could relay the issue for relief to another constituted unit in the country or even abroad.
Acknowledge receipt of this letter.
Yours sincerely.”

8.	That was met by a letter from the Registrar on 3 March 2004 who says this:

“The matter of your appeal under reference EAT/0965/99/MAA is at an end at this Tribunal. An application for review of an Employment Tribunal Decision must be made to the Employment Tribunal. This Tribunal can only deal with appeals from Employment Tribunal Decisions and any such appeal must be lodged in accordance with the EAT Rules.”

A copy was sent to the Respondents’ solicitors.

9.	At the same time, the Applicant was pursuing an actual application for a review and had instructed solicitors Messrs Humphreys to do that.  On the 11 March 2004 they presented a detailed application for a review.  They described themselves as instructed to submit the letter making that application but not to be placed on the Tribunal record as a representative.  The Chairman refused to allow a review pursuant to his powers under Rule 13 on 24 March 2004.  It will be recalled that the time limit for presenting an appeal expired on 2 April 2004, which by the Practice Direction which follows the CPR means 4pm.

10.	No further communication was received from the Applicant until a fax timed at 4 April 2004 20:15pm hours was received at the EAT, that means it was date stamped 5 April 2004.  Whatever it contained, if it were a Notice of Appeal it was out of time by three days.  In this he says as follows:

“Following my initial submission of grounds for appeal I am following it up with a redrafted one that would be sent by fax to your office followed up with a hard copy.
Do I need to apply for an extension of time in accordance with Art 37 of the Eat as my solicitor is drafting the document for me. Documents came late through the post.
Please acknowledge receipt of this letter.”

A further letter was received by the Registrar saying as follows:

“In pursuance of my request for a review by the EAT, enclosed are the documents as drafted for submission as a supplement for the one that I sent much earlier on 23/02/04.
Please acknowledge receipt of this bundle.”

11.	The grounds for the appeal appear to be those attached to that letter but there is some uncertainty about this.  Unarguably, grounds for appeal were sent on 19 April 2004 and the correct Form 1 which identifies the Respondents and other formalities necessary for an appeal to be constituted was received on 12 May 2004.  A gremlin appears to have entered into the paperwork because on 15 April 2004 the Applicant sent what he described as grounds of appeal.  This is in relation to a case number 2700079/2004 which is not the subject of today’s proceedings but is I understand part of proceedings going on in Reading.  At one stage that letter appeared to be relevant to our proceedings.  That has been cleared up before me today and although the Registrar cites it, it seems to me there is no material error since the grounds of appeal as I have said were lodged on 19 April 2004 and she made her decision as though they were lodged on 15 April, in other words erring in favour of the Applicant.

12.	The Registrar considered the Notice of Appeal had been lodged on 12 May 2004 and called for an explanation from the Applicant.  In it he made a number of contentions including that he was waiting for an outcome of the review applications made by his solicitors.  He also contended that he was conducting the matter in person and that he had decided to use the fax machine.  He also drew attention to the fact that he was overseas between 9 and 20 June 2004.  The Respondents also put in submissions dated 7 July 2004 indicating the correct approach to be taken by reference to judgments of this court in Kanapathia v London Borough of Harrow [2003] IRLR 577 and of the Court of Appeal Aziz v Bethnel Green City Challenge Ltd [2000] IRLR 111 which also relate to Mummery P in his judgment UAE v Abelghafar [1995] IRLR 243.  The Registrar considered all this material and decided that the Applicant’s Notice of Appeal was out of time and he had given no qualifying reason for the extension of time pursuant to her discretion under Rule 37.  The Applicant exercised his right to appeal to me.

The legal principles

13.	The legal principles are not doubt in this case.  They are referred in the authorities to which I have made reference and include also a consideration of the merits of the case in certain circumstances where the case plainly has no merit.  The reasoning of the Registrar in her rejection of the Notice of Appeal dated 25 August 2004 in my judgment contains the correct approach.

The Applicant’s submissions

14.	The Applicant contended first that the letter which he sent is a Notice of Appeal and should be construed as such and that the further documents simply add to it.  Secondly he contends that as a layman he was waiting for the results of the review and acted quickly thereafter.  Thirdly, certain documents sent to him have gone astray in the post.

The Respondents’ submissions

15.	On behalf of the Respondents, it is contended that the Applicant’s credibility is very much an issue in these proceedings.  He was advised by solicitors, he knew about an appeal and he knew about a review.  He had been sent the notes of how to deal with a decision of the Employment Tribunal which expressly referred to the fact that an appeal should not be held up waiting for a review and indeed that appears in the Practice Direction of the EAT too.  It is contended that the Applicant’s allegation, for the first time in his appeal to me, that documents went astray in the post indicates his lack of credibility.  He has a history of not appearing and if the merits of the case are relevant, then this case has none.

Conclusions

16.	In my judgment the Respondents’ submissions are correct and I will dismiss the appeal from the Registrar’s Order.  First I look at the original intervention by the Applicant as far as the EAT is concerned, that is the letter of 25 February 2004.  It is in terms an application for review.  I bear in mind the Applicant’s litigation history: he says he is a novice.  He is not.  He has had three stages of his case before the EAT and he is an intelligent and articulate person.  The notes accompanying the Tribunal’s decision make it clear that there is a difference between a review and an appeal.  The grounds set out for the review of his case follow those grounds which would be available before an Employment Tribunal and in my judgment this constitutes an application for a review.

17.	There can be no application for a review unless it referred to Judge Prophet’s EAT hearing. That is how it was taken by the Case Manager writing on behalf of the Registrar on 3 March 2004.  He naturally assumed it was to do with the judgment of Judge Prophet.  For that would make sense if there were simply a review; but it was made clear by that letter which was properly drafted and intelligible to Mr Chigbundu that what he had thus far submitted would not do as a Notice of Appeal and that any Notice of Appeal must conform to the EAT Rules.

18.	I then turn to the second point which is that the delay was caused by waiting for the review.  That in my judgment is not a valid ground in any event as both the notes to the Tribunal’s decision and our own make clear.  But in any event the Applicant was in the hands of solicitors who did give him advice about appeal and were conducting the review on his behalf.  I find in this case that the amount of time between hearing the result of the review and 2 April 2004 was sufficient for a proper Notice of Appeal to be submitted and it could also have included a reference to the review, if so advised.  Thus, in my judgment there was no valid Notice of Appeal within the 42 days.  The letter of 5 April is not a valid Notice of Appeal either.  That too indicates the Applicant’s understanding of the importance of time.  I have been asked to consider, since it goes to credibility of the Applicant, the date on this form.  It appears to have been amended in manuscript from what looks to me like 3 April back dated to 2 April.  The only evidence I have is that it was transmitted at 20:15 on 4 April.  Mr Twineham submits that the Applicant is not to be trusted with these dates for he will have known of the 42 day requirement and has adjusted his letter to met that, albeit he got it wrong.

19.	For reasons which I will further explain, I consider there is substance in that submission.  The Applicant then submits that the completed Notice of Appeal was submitted on 12 May and pays attention to the fact that he was out of the country.  Nothing turns on that since that absence post-dates 12 May.  I then turn to the Applicant’s contention that documents were missing.  Again I accept that Mr Twineham’s submission that this casts doubt on the credibility of the Applicant since this is the first time when it is said documents have gone astray during the relevant period.  I have examined the EAT file in detail. I have asked Mr Chigbundu to produce documents and where he has not been able to I have found them in the file.  But there is no document which corresponds to the description which the Applicant puts forward as having gone missing.  I do not accept this entirely new argument based upon the suggested going astray of documents.  None went astray.

20.	The reason why I am engaged in this process is because according to the judgment in UAE, three questions have to be answered.  What is the explanation for the default?  Does it provide a good excuse for the default?  Are there circumstances which justify the EAT taking the exceptional step of granting an extension?  And in considering in these matters the genuineness of the application and the full and frank approach adopted by the person applying are to be considered.

21.	With those matters in mind, I return to the comment I made earlier about the document lodged on 5 April. I consider that does cast out on the Applicant’s credibility.  As is his account of his reason for being late before the EAT today.  A Notice of Hearing was sent out although it was in due course altered and required the parties to be here at 10:30am.  Because Mr Twineham has experience of the Applicant’s poor attendance history he himself wrote a letter to the Applicant which the Applicant received some days ago telling him it was 10:30.  I do not accept that the EAT notice sent to the Applicant failed to reach him because of some unspecified postal delay.  If he were under the impression, as he told me, that the hearing was to be 12:00 I do not understand why he arrived at 10:50 and for that reason too I consider the Applicant has not given by a full and honest explanation of grounds for the exercise at my discretion.  

22.	Finally, I take account of the merits of this case.  This is unusual but I am entitled to do so when it is obvious on the face it that it will fail: Aziz v Bethnel Green City Challenge Ltd [2000] IRLR 111.  In my judgment the issues of fact which were before the Chairman to determine in deciding whether the Applicant had conducted himself unreasonably or he was contumeliously failing to prosecute his case are ones which would be unlikely to be overturned by the EAT.  The test now is whether there are reasonable prospects of success on an appeal to the EAT.  If this case did have reasonable prospects that might be a factor but it is rarely used.  However, since it has no prospects it is a factor which strengthens the view I take which is there is no injustice to the Applicant in his appeal being refused here.

23.	This is a very old case.  I have not considered the underlying merits of the Applicant’s case, as opposed to the procedural issues which caused it to be struck out.  It is sufficient that Judge Prophet’s EAT decided that the original the Employment Tribunal had been wrong and that case should be heard on the merits.  I am of course acutely conscious that this is a race discrimination case which should be heard, but similarly those on the receiving end of such applications have rights too as the Court of the Appeal made clear in Divine-Borty v Brent LBC [1998] ICR 886 CA.  Although I have put that out of my mind for I am only considering the merits of the Decision by the Chairman to strike out.  If the Applicant had continued to prosecute his case as directed by Judge Pugsley, I very much doubt whether the Chairman would have struck it out.  However, that consideration of the merits is a secondary matter.  In my judgment the Applicant was out of time in raising his Notice of Appeal and since I am entitled to apply the time limits in the Rules strictly, following the authorities above, I have found not ground to exercise discretion in his favour.

24.	I would very much like to thank Mr Chigbundu for the measured way in which he presented his arguments today and to Mr Twineham for his succinct submissions.  Appeal dismissed.