Appeal No.	EAT/1098/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

MISS Z K FLAMMA-HILL	APPELLANT

MICHAEL HOPKINS ARCHITECTS & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D MATOVU
(OF COUNSEL)	
For the Respondent	MISS J COLLIER
(OF COUNSEL)
(Instructed by)
Messrs Macfarlanes
10 Norwich Street
London EC4A 1BD	

	MR JUSTICE MORISON (PRESIDENT):	This is an Appeal against the Registrar’s refusal to extend.  Her Order is dated 26th November 1998.  The circumstances are these.  

1	The Notice of Appeal was, I am satisfied, partially transmitted on the last day for filing a Notice of Appeal, but because the Appellant did not have available to her at 11.30 pm the second half of her Notice of Appeal, she had to go home, get a copy of it, and then went to a different fax machine and transmitted the Notice of Appeal which was received by this Court at 8 minutes into the day after time expired.  In these circumstances, the Applicant has to accept that she had left the lodging of a Notice of Appeal until very much the last minute and to some extent therefore, can be said to be the person responsible for any hiccup that occurs which results in the Notice of Appeal being received in its complete form 8 minutes out of time.  It was rightly pointed out by Miss Collier on behalf the Respondents that we will not extend time merely because the Notice of Appeal is 1 day out of time because the logical consequence of that is that our time limit of 42 days would then become 43 days and thereafter, ad infinitum, if I am allowed to use that expression.  

2	She also says that there is good support in the Abdelghafar decision to the effect that people who leave things to the last minute then cannot complain if, due to circumstances beyond their control, the Appeal document is received out of time.  She says that 8 minutes out of time is no different from 1 day out of time and therefore, the normal rule should apply.  

3	In my view, this is a wholly exceptional case.  There is no doubt, as it seems to me, that the fax transmission was taking place at 11.30 in the evening of the last day and that if the document had been to hand, it would have been completely transmitted before it became out of time.  

4	It seems to me, in the circumstances, that what we have here is a case where a Notice of Appeal has been partly received out of time and partly received in time and in those particular circumstances, I am prepared to say that it would be fair and just to extend time sufficient to enable the Notice of Appeal to be considered by the Employment Appeal Tribunal.  

5	In arriving at my conclusion, I have not had regard to any great extent, to the merits of the Appeal itself.  The reason why I have not felt able to take that matter fully into account is that this case part of a very complex and lengthy interlocutory history.  The parties have been engaged in a Tribunal process which has not reached fruition in the sense that it has not yet got to Court.  There are interlocutory steps of Further and Better Particulars, Discovery and questionnaires and so forth which remain unresolved and there is also an Appeal by the Respondents, as I understand it, which has yet to be considered in the Employment Appeal Tribunal in relation to interlocutory matters, it being the Respondents contention that for various reasons, the Application or complaint which invokes the Employment Tribunal’s jurisdiction which relates to Race Discrimination in particular, should be struck out.  

6	That being so, as I have allowed this Appeal, it is right that this Appeal and the Respondent’s Appeal should be heard together.  (By that, I do not mean making a formal Consolidation Order but simply, they will come on before the same Court on the same day and probably, can be heard and determined together.)  If the case is to proceed, that is, if the Appeal against the refusal to strike out the complaint fails it seems to me essential that the Employment Appeal Tribunal gives such further directions as may be required.  It is, broadly speaking, intolerable that parties should be engaged in interlocutory procedures for this length of time which will only go to heighten and inflame people’s feelings and that what is needed is an orderly determination, if such is to take place, of the complaint in a way which is just and fair to both parties.  

7	It is particularly important, in a case such as this, that the precise nature of the allegations being made should be spelt out as fully as possible, because it is out experience here, that race discrimination cases in particular, occupy an unnecessary length of time in Tribunals, largely because the parties have not, prior to it coming before the Tribunal, sorted it out precisely what the allegations are and how they are to be dealt with.  In my view, it is likely that when these matters are dealt with, if the main complaint is still to continue, it will be essential that the Employment Appeal Tribunal makes directions so as to ensure that the case proceeds properly thereafter.