Appeal No.	 PA/742/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 November 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
(AS IN CHAMBERS)

MR S J LINDSAY	APPELLANT

CUMBRIA COUNTY COUNCIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEAL FROM THE REGISTRAR’S ORDER

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR P BROWN
(of Counsel)
Instructed by:
Mr R Claydon
County Solicitor
Cumbria County Council
The Courts
Carlisle
Cumbria
CA3 8LZ	

	MR JUSTICE LINDSAY (PRESIDENT):		I have before me an appeal against the decision of the Registrar on 3rd August 1999 in the matter: Mr S J Lindsay v Cumbria County Council & others. This morning Mr Lindsay has appeared in person and Mr Brown of Counsel has appeared for Cumbria County Council.

1.	I have already heard in open court and with two colleagues a related appeal in the matter of Lindsay v Cumbria County Council, and have given a judgment in that and some of the observations in that judgment touch upon matters that come into play here as well because in each case the two separate appeals have been concerned with the passage of time and the delay on the part of Mr Lindsay and how that delay should be responded to procedurally.

2.	The first thing I had to deal with in this case which is now in front of me is an application by Mr Lindsay that some conflict of interest arises by reason of my having heard the other appeal (with two colleagues). I see no relevant conflict of interest and therefore have proceeded to hear this appeal too.

3.	I need to say something of the history of the matter. On 11th June 1999 Mr Lindsay sought leave to appeal out of time against a decision sent to the parties on 26th October 1994. That decision made at the Employment Tribunal at Carlisle under the Chairmanship of Mr D H R Mason was unanimous and was:

“The unanimous decision of the Tribunal is that the applicant has not been discriminated against pursuant to the Sex Discrimination Act 1975.”

	That was the outcome of a three-day hearing on 21st, 22nd and 23rd September 1994.

4.	There had been, in effect, two IT1 ,’s which had been lodged by Mr Lindsay on, respectively, 7th October 1993 and 1st June 1994. The events that were in play in those complaints went back to 1992. As I mentioned, the hearing was spread over three days. The decision covered both IT1’s and extended reasons were given on 26th October 1994.

5.	Under the Employment Appeal Tribunal Rules 1993, rule 3(2), an appeal has to be lodged within 42 days after the sending out of the extended reasons for the decision. Accordingly, time for an appeal thus expired on 7th December 1994. However, the EAT has a rule, rule 37, which permits time to be extended. There are many cases, of course, as one would expect, as to the situations in which it is proper to extend or not extend to time and the most recent and comprehensive guidance as to the exercise of the discretion conferred on the EAT is the EAT case United Arab Emirates v Abdelghafar [1995] ICR 65 Mummery J presiding. Mr Lindsay himself knows the case; he referred me to it.

6.	The chronology needs to be borne in mind. On 11th June 1999 Mr Lindsay wrote to the Registrar at the EAT indicating a wish to appeal against the decision of 26th October 1994. As is customary, the EAT replied indicating that the Notice of Appeal was out of time and that the necessary first step would have to be an application for an extension of time within which to appeal. The letter also indicated, again as is usual, that if there was to be an application for an extension of time then the respondent’s views would also be asked for. That was done and Cumbria indicated that it opposed any extension of time. That was received by letter of 19th July 1999.

7.	However, Mr Lindsay decided to seek an extension of time nonetheless and he did that by letter of 11th June, as already mentioned.

8.	Mr Lindsay gives reasons for the application in the letter of 11th June 1999. He says:

“The reasons for the late application are as follows:-
1.	The hearings were heard during a time when concern was expressed by the then Lord Chief Justice, Lord Taylor of Gosforth and other eminent Law Lords such as Lord Ackner, that there was political intervention into the EAT system. The concerns expressed in the Channel 4 television programme “The Brief”.
2.	In the EAT Decision EAT/522/94, I am warned of the risks I run as to costs, should I appear before the EAT again.
On this basis it appeared to me that the undertaking to ensure the equal rights of men and women to the enjoyment of all civil and political rights contained in the International Covenant on Civil and Political Rights, by the State, would not be honoured.”

	Those were the reasons given for the delay.

9.	The Registrar, receiving that and taking into account that letter, on 3rd August ruled as follows:

“UPON THE application of the Appellant by a letter dated 11th day of June 1999 for an extension of time in which to enter a Notice of Appeal
AND UPON consideration of the aforesaid letter and a letter dated 19th day of July 1999 from the Respondents and a further letter from the Appellant dated 23rd day of July 1999
IT IS ORDERED that the aforesaid application be refused”

	It is not the practice, in such cases, to give reasons, although sometimes they are given.

10.	On 4th August 1999 Mr Lindsay wrote inviting his letter to be treated as a Notice of Appeal. He says:

“In respect of the Order refusing an extension of time in which to enter a Notice of Appeal, I would seek an explanation on the grounds upon which the application is refused.
Please take this letter as Notice of Appeal against the decision.”

11.	On 9th November 1999 Mr Lindsay sent outline submissions. He refers to United Arab Emirates v Abdelghafar. I ought to read some passage of this case as they are of central relevance to this sort of application. At page 71 under the heading “Application of principles by the appeal tribunal” at paragraph (2) it says:

“The appeal tribunal’s discretion will not be exercised unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. … 
(3)	… The tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. …”

	Not a very apposite remark here, because here, of course, we are dealing with enormous delay. At page 72 the decision says, between A and B:

“The merits of the appeal may be relevant, but usually of little weight. It is not appropriate on an application for leave to extend time for the appeal tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. …”

	In conclusion under that heading:

“Thus, the questions which must be addressed by the appeal tribunal, the parties and their representatives on an application for an extension are: (a) what is the explanation for the default? (b) does it provide a good excuse for the default? (c) are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?”

12.	In my judgment, Mr Lindsay provides no good excuse for not having appealed earlier. Even if he is right in asserting that the Employment Tribunal had manifestly gone wrong in law, that would surely be a reason for an earlier appeal, namely, that its error could seen manifestly and early, rather than a reason to delay an appeal. Even if he was right in asserting that the Employment Tribunal had shown itself to be non-independent, that would, again, surely be a reason for a timely application so that the matter could be taken as fast as possible to some other and some independent body. The fact, as Mr Lindsay asserts, that a threat as to costs was made against him, seems to provide no logical reason for applying late or for appealing late rather than appealing early. If Mr Lindsay had made out a case that his financial circumstances were such that earlier the threat of costs was such as, in practical terms, to require him not to appeal but that his financial position had so improved that a threat as to costs no longer held any terrors, then one might, perhaps,  have begun to see that a threat of costs could have delayed the lodging of an appeal, but no such case is made out on the facts. Bearing in mind the passages from Abdelghafar, the position must be that a quite remarkably compelling reason for delay would be needed to explain delay from 26th October 1994 to 11th June 1999. I cannot see any such compelling explanation of the delay.

13.	Mr Lindsay would have me look at the merits of the underlying case that he would wish to assert on appeal. For the reasons given in Abdelghafar, it would not be right to embark upon an examination of those merits because that leads to a mini-hearing of the substantive case. But I have not stopped Mr Lindsay seeking to address me on the merits, although I am bound to say I have not been able to discern any case of any real strength on those merits. It has become apparent, as Mr Lindsay accepts, that he needs to assert an argument that the decision of the Employment Tribunal was perverse, which is never an easy hurdle to surmount and I have been given no good reason to think that he will be able to surmount it.

14.	Mr Lindsay says that Cumbria, by its skeleton argument and by its oral argument, managed to misdirect the Employment Tribunal on the law and he also complains that  he received Cumbria’s skeleton argument only shortly before the substantive hearing and that that had put him at a disadvantage. But whatever effect such considerations have on the merits of the case, they do nothing to explain the delay. A complainant such as Mr Lindsay, who feels he has been treated badly or that the Tribunal has been misled by his opponents, would surely be an angry complainant, the sort of complainant from whom one would might reasonably expect an early appeal rather than a late one. 

15.	Mr Lindsay has argued also that to deny an extension of time is to deny an effective remedy and that he, therefore, has been denied rights which, as a citizen of this country, he is entitled to have. But that, as it seems to me, fails to recognise that the three day hearing in 1994 offered an effective remedy, especially when coupled with the 42 day period thereafter within which an appeal could have been lodged and the ability also for that time to be extended wherever a real case for an extension came to be made out. The fact that Mr Lindsay failed to achieve advantage from the effective remedy on offer under the jurisdiction and the rules does not mean that there was no effective remedy open to him.

16.	Mr Lindsay has asserted that there has been a breach of Article 14 and Article 2 of the International Covenant on Civil and Political Rights. He has referred me in Article 2 to paragraph 3:

“3.	Each State Party to the present Covenant undertakes:
(a)	To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b)	To ensure that any person claiming such a remedy shall have his right thereto determined by competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy’
(c)	To ensure that the competent authorities shall enforce such remedies when granted.”

	Equally, he draws my attention to Article 14 which begins:

“All persons shall be equal before the courts and tribunals. …”

17.	I fail to discern any breach of those provisions. I have no reason to think that any relevant decision against him has been motivated by political considerations or, as he wishes to indicate, that all matters have been decided by way of bias and by some tribunal lacking independence. Mr Lindsay asserts, and I see the force of this, that he should be guaranteed access to a fair, independent and competent tribunal. But I fail to see how that assists him in his application which is out of time. Even if one were to assume that the tribunal here had not been independent or that it was prejudiced, then he had immediate access to go upwards to some body, such as the EAT, or, through the EAT to the Court of Appeal, but he failed to exercise it within the period which has been specified by Parliament. And, as I hope have made plain in the other Lindsay appeal that I had in front of me, it is Parliament that here has decided where the public interest lies in determining what are the timetables by which the public interest that there should be finality in litigation is to be judged. It is Parliament that has prescribed and approved the time limits which are in front of me, namely the 42 days, in particular, in relation to the lodging in time for an appeal. That is well within the competence of Parliament to fix. As all jurisdictions all over the world provide, there has to be some finality to litigation, otherwise all cases would drag on forever or, at any rate, many of them would.

18.	Mr Lindsay also relies on an argument that his lateness here is because a threat was made as to his potential liability for costs. I hope that I have dealt with that already. It does not seem to explain a delay on the particular facts of this case.

20.	I have a discretion to exercise afresh here, unbounded by the decision of the Registrar and, doing the best I can on the factors that are put in front of me, I decline to extend time for the lodging of a Notice of Appeal. In fact, I have not had to call upon Mr Brown on behalf of Cumbria. That being so, as it seems to me, I must dismiss the appeal.

MR JUSTICE LINDSAY (PRESIDENT):		I now have in front of me an application by the respondent to this appeal, Cumbria County Council, that an order for costs should be made against Mr Lindsay.

1.	Mr Brown, on behalf of Cumbria, has drawn my attention to rule 34(1) of the EAT Rules 1993. It provides as follows:

“Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.”

	Rule 34(2)says:

“Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge.”

2.	Firstly, Mr Brown says that here there has been unreasonable delay. The delay he draws attention to is that of some 4½ years between decision of the Employment Tribunal on 26th October 1994 and the application for leave to appeal out of time this year. There has been no particular delay since the application for leave to appeal out of time was made by Mr Lindsay in June 1999 but there is an enormous period of delay before that, delay which I have indicated has not been of such a character as to allow a grant of an extension of time.

3.	Secondly, Mr Brown says that this is not the first occasion on which Mr Lindsay has brought cases to no real avail. He has advanced at earlier stages arguments and application that have proved to be ill founded and that some limit has to be put, lest the public funds of Cumbria are put unnecessarily at a disadvantage. He draws attention to the fact that the EAT earlier gave some indication of what might be the case were Mr Lindsay to continue to make unsuccessful applications. This is the so-called threat as to costs which Mr Lindsay relied upon as a reason for not appealing. The particular words used in the decision of Mummery J, sitting here on 30th June 1994 when he was President, said:

“We warn Mr Lindsay of the risks as to costs that he runs in any further appeals to this Tribunal, as well as in relation to proceedings which he pursues before the Industrial Tribunal. We also add this: that, although Mr Lindsay did not take kindly to the suggestion when it was made in the course of the hearing, we are of the view that he would seek legal advice about the proceedings. Advice is available from Citizens Advice Bureaux’, from Legal Advice Centres and from the Free Representation Unit in connection with cases of this kind. If he sought that advice and carefully considered it, he might be able to protect his position, both in relation to his complaints and in relation to future risks as to costs.”

	On that particular application there was no order for costs in Cumbria’s favour, but it looks, if I might so put it, as being a close run thing and that warning as to the future was given as also was that advice that Mr Lindsay would be well advised to seek legal advice.

4.	Mr Lindsay has (perhaps imprudently) disclosed that he has had some legal advice or at least some advice in this particular connection from the Citizens Advice Bureau. He volunteered a sight of a letter to both the Tribunal and to Cumbria’s advisers and, without going into detail into what might otherwise have been privileged it is plain that the Citizens Advice Bureau did warn Mr Lindsay back in 1998 that strict time limits did operate in this area. For all that, he has gone ahead with this application in June 1999 and accordingly, it being inter partes, Cumbria has had to lay out money to protect its position. 

5.	I have had brief details of the sum that Cumbria has spent. It is thought that overall, linking Counsel’s brief with Solicitor’s time, some £1,000 has been clocked up in this application. 

6.	Mr Brown on behalf of Cumbria does not press for the whole of that amount. But he says, not unreasonably as it seems to me, that some marker needs to be put down so that Mr Lindsay must be aware that there is costs sanction that is operative where cases are brought which fall foul of rule 34(1).

7.	I do regard this as a case which does so fall foul. It cannot be said that the proceedings were unnecessary in the sense that if he wanted to appeal out of time he had to seek to leave to do so out of time. But it is a case, as it seems to me, where there has been antecedent unreasonable delay and that to pursue the case, as he has, after such delay and with so little an explanation of why there has been delay does represent unreasonable conduct in conducting the proceedings. It does seem to me that Mr Lindsay can properly be made the subject of an order under rule 34(1).

8.	So far as concerns an assessment of costs, at this stage I am not concerned with Mr Lindsay’s ability or inability to pay whatever sum is ordered. The question of recovery is a later stage.  It may be that, having obtained an order in their favour by way of a marker for the future, Cumbria will not seek to exact that which at law they are entitled to seek to exact. That is a matter for them. Looking simply at the appropriateness of the sum to be assessed and having regard to what has been said to me in relation to the fees and the breakdown of fees, I make an order that Mr Lindsay shall pay £550 to Cumbria in respect of the cost of this application.

10.	Mr Lindsay is plainly already of rather stretched means. He has given me some information about him having to meet some existing liabilities at so much a week and so on. But, as I say, that is not an immediate concern of mine. I am concerned only with the assessment of costs. How, if at all, they are recovered will have to be left to the future. But there is to be an order against Mr Lindsay for £550 assessed costs in relation to this matter.