Appeal No.	 PA/1430/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1999

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

MR K C EKE 	APPELLANT

MR M PEACH & COMMISSIONERS OF CUSTOMS & EXCISE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M KELLY
(of Counsel)
Instructed By:
Mr N Niyazi
Messrs Leslie Brown & Co
Solicitors
381-385 Fore Street
Edmonton
London N9 0NR	
For the Respondents	LORD PHILLIMORE
(of Counsel)
Instructed By:
Ms R Shah
Solicitors Office
Civil Litigation Dept
Customs & Excise
6th Floor East
New Kings Beam House
22 Upper Ground
London SE1 2PJ	

MR JUSTICE MORISON (PRESIDENT):     This is an appeal against the Registrar’s refusal to extend time for lodging a Notice of Appeal.

The Notice of Appeal in this case was received 54 days out of time.  It is an appeal against a decision of an Employment Tribunal which was sent to the parties on 26 August 1998.  The Notice of Appeal was received by the Employment Appeal Tribunal on 30 November 1998.

The Notice of Appeal bears the date 5.10.98 and a signature being, I presume, a signature of a representative of the firm of Solicitors, Leslie Brown & Co, who were then acting for the Appellant, Mr Eke.

Mr Eke has been a litigant in the Employment Appeal Tribunal on previous occasions and he, himself, was quite well aware of the way in which appeals are made to this court, but it would appear that his Solicitors either were not aware or were careless in the way in which they dealt with this matter.

The Notice of Appeal was accompanied by a letter directed to the Employment Appeal Tribunal dated 25 November 1998.  It said this:

“We act for the above named person in connection with this matter and are writing to you to explain an unfortunate administrative mistake, which was made on our behalf.  
We enclose a copy of the letter and Notice of Appeal, which was by mistake sent to the Industrial Tribunal (London South) on the 5th October 1998, when it should have been sent to you.
Under such circumstances we would be most grateful if the EAT would exercise their discretion and consider our client’s Appeal which is now out of time.  We are deeply sorry for any inconvenience that this may cause though urge you to consider our client’s application for appeal.
We thank you in advance for your consideration in this matter and look forward to hearing from you.”

Subsequently, they were invited to explain why time should be extended and by letter dated 17 December they put forward their explanation which was that the Notice of Appeal had been submitted to the Employment Appeal Tribunal in early October which was within time but unfortunately, instead of it being sent to the Appeal Tribunal it was sent to the Industrial Tribunal which dealt with this matter initially:

“This administrative mistake was due to our secretary addressing the Notice of Appeal to the wrong body.
In any event we were contacted by the Industrial Tribunal who had notified us of this mistake, but told us not to worry they would forward the Notice of Appeal to the EAT the same day.  The person to contact our office was Lesley.”

They go on to make the point that the error was theirs or the Employment Tribunals and it would be grossly unfair to Mr Eke if discretion was not exercised in his favour in this case.

The principles which govern appeals of this nature are carefully set out in the judgment of this court in a case which is well known to practitioners here, called United Arab Emirates v Abdelghafar [1995] ICR 65, which sets out the considerations that this court will wish to take into account when considering matters of this mind.  

As Counsel on behalf of Mr Eke who has capably put forward, I think, every point that could be made, submitted the first question is “What is the explanation for the default in failing to file a Notice of Appeal within time?”.  And what he says is that the explanation for the default is a simple administrative error on the part of the Solicitors.  I am not prepared to accept that I have been given a full explanation for what has happened in this case.  

In the first place it seems to me that the letter of 25 November is difficult to reconcile with the position subsequently taken up by the Solicitors that they had been in communication with the Employment Tribunal, who were sending the Notice of Appeal to this court.  There is no mention in the letter of 25 November of any contact with the Employment Tribunal, nothing to say, as one would have expected, “I am enclosing a new Notice of Appeal although, as a result of conversations I have had with an officer of the Employment Tribunal, I imagine that you have already received this Notice of Appeal, alternatively will be receiving it in the course of the next day or so”.  I find that an extraordinary omission, given their contention that they had been, so to speak, let down apparently by an officer of the Employment Tribunal.

Secondly, it seems to me difficult to understand how the Solicitors could have sent a Notice of Appeal on 6 October with the person concerned in charge of Mr Eke’s case, presumably believing that it had been sent to the Employment Appeal Tribunal, but no contact was made with the Employment Appeal Tribunal to find out why it was that there had been no acknowledgement of the Notice of Appeal of 6 October.  There was no contact at all between the Employment Appeal Tribunal and the firm of Solicitors until the letter of 25 November.

Thirdly, it seems to me of crucial importance, if it is being suggested that there was a phone call with the clerk in the Employment Tribunal, that the Appellants should identify approximately the date when they say that telephone conversation took place.  It is of importance.  Presumably, if the conversation had taken place much earlier, one would have anticipated that there would have been a chase-up conversation and an enquiry made of the Employment Appeal Tribunal to ask if we had received it.  Putting the two documents together the inference I draw is that the conversation, if there was one with the Employment Tribunal, did not take place until on or about 25 November and it was on that occasion that the Notice of Appeal was sent to us, well out of time.  

Employment Tribunal decisions concern many people, many parties, who do not have the benefit of legal representation and accordingly, it is the procedure of the Employment Tribunal to enclose with every reasoned decision a leaflet, written in plain English, which makes it quite clear how appeals can be filed and the time limit for doing so.  In this case it is extraordinary that the Solicitors failed to communicate with the right body.  

It is the experience of the Employment Appeal Tribunal that unrepresented parties are almost invariably able to comply with the requirements contained in that leaflet, which is easy to read and easy to understand and easy to follow.  Indeed, Mr Eke himself, if he had been handling this matter would, no doubt, have managed to get his Notice of Appeal in in time as he has managed on previous occasions.

Accordingly, I am not satisfied that I have been provided with a full explanation.  I would have needed to have been told much more about these alleged telephone conversations for them to carry any weight at all but secondly, in any event, I am not satisfied that what I have been told excuses or justifies the Tribunal in extending time.  The 42-day time limit is, as has been said on frequent occasions, a limit of time and not a target to be aimed at.  The reason why it is important that these time limits are observed is because it brings a finality to litigation.  The successful party in the Employment Tribunal is entitled to be able to be sure that after the 6-week period has expired, he is not going to be involved in a further challenge to the way he has conducted himself which led to the initial complaint.

	Accordingly, although I have great sympathy with the position of Mr Eke, who probably has a claim against his former Solicitors, I am not of the view that I can accede to this appeal.  In the exercise of my discretion there was no proper excuse advanced to me to justify my extending time.  Accordingly, this appeal will be dismissed.