Appeal No. UKEATPA/1496/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MRS C N PIERRE-DAVIS	APPELLANT

THE NORTH WEST LONDON HOSPITALS NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MR T Z AYE
(McKenzie Friend on behalf of the Appellant)	
For the Respondent	MR O SEGAL
(of Counsel)
Instructed by:
Messrs Cater Leydon Millard Solicitors
18C Milton Park
Milton
Abingdon
Oxfordshire OX14 4RP	

SUMMARY
PRACTICE AND PROCEDURE
Time for appealing
The Claimant’s Notice of Appeal was out of time as she sent it to the Employment Tribunal and not the EAT. On live evidence, no acceptable excuse was found to justify the exercise of discretion under Rule 37(1).

HIS HONOUR JUDGE McMULLEN QC

1.	This is an appeal from a decision of the Registrar.  In substance, the Registrar decided not to allow the registration of a Notice of Appeal lodged out of time, but in form, there is a number of other orders by the Registrar and I will deal with those in the chronology.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	The appeal sought to be lodged is against a judgment of an Employment Tribunal sitting at Watford under the chairmanship of Employment Judge Pettigrew over four days, registered with reasons on 24 September 2008.  The Claimant represented herself.  She today has the advantage to be represented by Mr Aye.  The Respondent has been represented throughout by Mr Oliver Segal, of Counsel.

3.	The Employment Tribunal rejected the claims of disability discrimination and unfair dismissal.  The Claimant received this judgment on 27 September 2008.  The deadline for submitting a Notice of Appeal to the EAT was 5 November 2008.  The Claimant submitted an incomplete appeal to Watford Employment Tribunal and not to the EAT.  The Registrar deemed that the complete Notice of Appeal was submitted properly 28 days out of time and she gave an order, sealed on 30 March 2009, refusing to extend time.  The Claimant appeals, in substance, against the refusal to allow her appeal to be entered.

The legislation
4.	The relevant provisions of law and practice are set out in my judgment in Muschett [2009] ICR 424.  Since then, the Court of Appeal has decided Jurkowska v Hlmad Ltd [2008] EWCA Civ 231, and I also decided Bost Logistics Ltd v Gumbley & Ors UKEATPA/0013/08, relevant to this case in respect of a failure to send a Notice of Appeal a relevant to the correct address.

5.	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 2004 Practice Direction indicates what documents must be included in order for the Notice of Appeal to be validly lodged.  The 2005 Practice Statement by Burton J, President, makes clear that these are prescriptive provisions and there is no special treatment for litigants in person. Rule 37(1) gives a general discretionary power to extend time.

6.	An appeal lies to a Judge from the Decision of the Registrar.  In effect, it may be a fresh hearing, sometimes with live evidence, as here.  The Claimant was cross-examined and answered questions by myself.  I make my own mind up on the basis of all the material.

The Registrar’s directions
7.	These directions are included within the reasons given for her order sealed on 30 March 2009.  She concluded, having addressed the relevant authorities, that the Claimant’s Notice of Appeal was out of time (that much is admitted) and there were no good reasons to extend time.

The facts
8.	On 24 November 2009, the Notice of Appeal and supporting documents were received by the EAT 19 days out of time, along with an application for an extension.  The documentation was incomplete.

9.	On 3 December 2008, the EAT received a complete copy of the documentation.  The appeal was therefore deemed to have been properly instituted on that date, 28 days out of time.  On 9 February 2009, the Registrar refused to extend time.  On 18 February 2009, the Claimant’s letter dated 12 February 2009 was received by fax and post in response to the Registrar’s letter. It is thus beyond the five days’ allowed to a party seeking to appeal against an order of the Registrar to a Judge.

10.	On 23 February 2009, the Registrar advised the Appellant that the challenge to her order was received two days out of time.  On 16 March 2009, the EAT received a letter (this time dated 13 March 2009) by fax, which was treated as an application for an extension of time in which to appeal the Registrar’s order, sealed on 9 February.  On 30 March 2009, the Registrar refused.

11.	On 6 April 2009, a letter was received by the EAT by fax, which has been treated as an appeal against the Registrar’s order, sealed on 30 March 2009.

12.	The skeleton statement signed by the Claimant on 18 May 2009 was supplemented by oral evidence.  The Claimant at once was dissatisfied with the judgment of the Employment Tribunal on receipt of it and determined that she would appeal.  An issue arose as to whether she received a copy of The Judgment booklet.  She told me that she had not received it.  I do not accept this evidence.  It is too much of a coincidence for her to have received the judgment without The Judgment booklet (which is routinely sent by the Employment Tribunal and these days is included within the stamp officially appended to the judgment) and at the same time to have failed to have received the Practice Direction from the EAT, sent by letter on 3 December 2008 directly to her. 

13.	I accept she may have had a number of things on her mind at the time and that she has forgotten that she received The Judgment booklet. She was put on notice that she had 42 days to appeal and that the address for lodging is that of the EAT. The Judgment booklet says, “How can I appeal against the Tribunal’s judgment? - You must serve a valid Notice of Appeal on the EAT at Audit House, 58 Victoria Embankment” and then it is emphasised: “There are strict time limits which you must observe for making any appeal”.

14.	The Claimant told me that she decided to seek assistance immediately and went to the CAB, who referred her, in due course, to Brent Law Centre.  She contacted them by phone in the middle of October (which I will take to be 15 October) and was advised in clear terms that there is a 42-day time period for submitting a claim.  She left things to the very last minute, 4 November 2008, and as she said, in her haste, as a result of constantly posting material to Watford during the course of the Tribunal proceedings, she did the same and discovered it later.

15.	She offers explanations in her written statement: she was seeking assistance because she was fully employed and therefore not entitled to legal help, and she was seeking to defend herself in proceedings against this employer in the County Court.  As she put it, she was faced with the dilemma of attending work, pursuing the appeal and defending herself.  She told me that she panicked in making her appeal and she asked for discretion to be exercised in her favour.

16.	Today she has added two more reasons, supported by some documentation.  The material which she has shown me does not assist her. The first relates to surgery of her 22-year-old daughter in respect of a fractured ankle, which contributed to either the delay in filing the Notice of Appeal or complying with the other deadlines.  On 23 October 2008, a report was made from Central Middlesex Hospital to her daughter’s GP. X-rays revealed a fracture in the distant past which has remained un-united. A referral was made on 7 November 2008 for an opinion as the Claimant’s daughter was presenting with pain in her right ankle.  There is a further reference on 2 March 2009 relating to ongoing symptoms, in a letter from a consultant orthopaedic surgeon indicating further opinions being sought.

17.	The second matter about which further documentation has become available today is the County Court proceedings.  A claim was allocated to the small claims track at Willesden County Court on 3 October 2008 setting a hearing date of 5 January 2009. On 22 October 2008, a District Judge vacated that hearing and set it up for 22 January 2009 and decided to strike out the defence.  I understand that the Claimant was also counter‑claiming.

18.	In my judgment, neither of those circumstances: the ancient injury to the Claimant’s daughter, nor the small claim brought against the Claimant, constituted a full explanation and a valid excuse for so distracting the Claimant against pursuing her appeal.  As she says, she was alert to the deadline with at least three weeks to spare.

19.	I appreciate that submitting a Notice of Appeal to the EAT is an important step; people should get legal advice, if possible.  But on looking at the Notice of Appeal, this is in very elementary terms.  The Claimant is an intelligent, articulate woman engaged in the Health Service in a responsible capacity and the Notice of Appeal extends to about 15 lines.  No particular effort needed to be made for this form to be served.  Three weeks was ample time for it to be done.  Those who leave a Notice of Appeal to the very end of the timescale run the risk that something will go wrong, as Mummery J stated in UAE v Abdelghafar. [1995] ICR 65 EAT at p 72.

20.	The Claimant had access to correct legal advice and could have put this form in herself at any time.  She did not manage her time as between her job, her daughter’s non-acute treatment and the small claim proceedings. She left it very late and with no time to recover from the error of sending it to the wrong address. I find no acceptable excuse for failing to put in the Notice of Appeal in time.

21.	It is strictly unnecessary for me to deal with what is really the basis of the appeal today, which is the appeal two days out of time against the Registrar’s order, but it does indicate to me that the Claimant does not take seriously the deadlines set out in materials which I hold have been sent to her. The Practice Direction, which was sent to her, shows the timescales for appealing against the Registrar.

22.	As a matter of practicality, rather than focus entirely on the subsidiary orders made by the Registrar, I have dealt with the substance of the Claimant’s case which is that she wants her Notice of Appeal to be registered.  As a matter of substance therefore, I will dismiss that.

23.	Mr Aye invites me to make the following comments.  He says that he believes the Claimant and that she is telling the truth.  He draws my attention to the seal on the end of the Employment Tribunal’s judgment.  This is in common form.  It is signed by the Employment Judge, as every judgment must be.  It then has the words, “London North West Region” where Judge Pettigrew has signed on 24 September 2008.  I do not know whether it was Judge Pettigrew or by an official, but then there follows this, “Judgment sent to the parties on 24 September 2008” in what looks to me like the same hand.  In those circumstances, this has been a fully completed judgment sent in proper form and I observe that everything is assumed to be done rightly.

24.	As I observed earlier, the seal now includes the words “Judgment Booklet Sent.” In any event, The Judgment booklet was sent to the Claimant, but as a result of the stress that she suffered when reading this adverse judgment, the fact that the Judgment Booklet was sent had slipped her mind.