Appeal No. UKEATPA/0113/08/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 May 2008

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR A ABIOLA	APPELLANT

NORTH YORKSHIRE COUNTY COUNCIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MR A O ABIOLA
(The Appellant in Person)

	
For the Respondents 
(except for Eteach UK Ltd	MR E LEGARD
(of Counsel)
Instructed by:
North Yorkshire County Council Legal Services
County Hall
Northallerton
North Yorkshire DL7 8AD

	
	ETEACH UK LTD 
No appearance or representation by or on behalf of the Respondent

SUMMARY

PRACTICE AND PROCEDURE:  Appellate jurisdiction/reasons/Burns-Barke
Discretionary extension of time to enter a Notice of Appeal by 3 days, in the exceptional circumstances that an EAT caseworker, seeing 2 ET1s and 1 ET3, said the papers were “all right”, even though 4 ET1s should have been included.

HIS HONOUR JUDGE McMULLEN QC

1.	This is an appeal from a decision of the Registrar to refuse to allow the registration of a Notice of Appeal against a judgment of the Employment Tribunal.  I will refer to the parties as the Claimant and the Respondent (North Yorkshire County Council).

Introduction

2.	The appeal itself is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting at Thornaby on Tees over some 20 days in 2007, Chairman, Employment Judge Dr Watt and Members, registered with reasons on 10 December 2007.  The Claimant represented himself and the Respondent today was represented by Mr Legard and the second Respondent Eteach UK Ltd was represented by different counsel but does not appear today.

3.	The claim is constituted against North Yorkshire County Council, Eteach UK Ltd, both of whom are responsible for administering the pool of teachers, and against the Governing Bodies of seven schools within North Yorkshire.

4.	The Claimant claimed discrimination on the grounds of race and other forms of discrimination.  

5.	The Claimant received the judgment on 12 December 2007.  I heard direct evidence from him about the succeeding weeks.

The legislation

6.	Relevant provisions of law and practice for Notices of Appeal are set out in my judgment under the title of Muschett v London Borough of Hounslow UKEATPA/0281/07.

7.	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 for the Notice of Appeal to be validly lodged.  The 2005 Practice Statement makes clear these are prescriptive provisions and there is no special treatment for litigants in person.

8.	The practice has been set out by United Arab Emirates v Abdelghafar [1995] IRLR 243 (CA) as recently approved and reaffirmed in Jurkowska v Hlmad Ltd [2008] EWCA Civ 231 (CA).

9.	The time limits are strict but the time is itself generous in that 42 days is longer than is generally given in the administration of justice for an Appeal.

10.	The approach in the EAT has also been affirmed in Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 (CA) where Ward LJ at paras 27, 30 opined that we denizens in the EAT who administer this jurisdiction are hardhearted and merciless, and yet with his hand on his own heart upheld the judgment of HHJ Peter Clark in refusing to exercise discretion in favour of the Appellant.

11.	The Registrar directed herself by reference to the relevant legal provisions.  She called for representations from both parties and decided to reject the Notice of Appeal.  An appeal lies to a Judge from the Registrar.  In effect it is a fresh hearing, sometimes with live evidence.  I make up my own mind on the basis of all material.

The facts

12.	The chronology is this.  The case consists of six claim forms and four responses.  The judgment of the ET collected together all the claims and I am told ran the case on the basis, on the one hand, of the relationship between the Claimant and North Yorkshire and Eteach and, on the other, of the relationship with the Governing Bodies.

13.	The judgment was sent on 10 December 2007 and that is when the 42 days runs from and expires on 21 January 2008.  The Claimant received the judgment on 12 December 2007, digested it (and it required some digestion since it is one of the longest cases I have read here, extending to 80 pages).

14.	The Claimant formed the view very quickly he would appeal and sought to appeal everything.  He sought advice from the CAB who had previously been helping him.  This was shortly before Christmas.  The adviser at the CAB advised him to go to solicitors.  He saw the solicitors on what I think was 15 January 2008 although the Claimant was vague about this during his evidence under oath.

15.	The solicitors sought legal aid in order to obtain counsel’s opinion, and that is presently in the hands of counsel.  Nevertheless, with the impending deadline, and there is no suggestion that the Claimant did not know it, the Claimant decided to submit his own Notice of Appeal which he did by post with guaranteed delivery sent on 18 January 2008.

16.	It arrived at the EAT on 21 January (which is Day 42) and at 2pm the Claimant says that in accordance with the information on the website he made a phone call. He spoke to a male member of staff at the EAT, whose name he cannot remember, and said: “Has my documentation arrived and is it okay?”  A member of the team said: “It has arrived and as far as I can see it is all right.”  The Claimant accepted from his experience of the County Court that normal practice is to serve a document and the office stamps it.  Apart from that he is not experienced in litigation.

17.	The Claimant told me that he had misinterpreted the Rules and for that reason he did not send all of the documents.  The Rules talk about the ET1 and the Judgment Booklet talks about “any claims”.  He also told me that he moved house and did not have access to his documents.  As a matter of principle, having lodged an ET1 and an ET3 in respect of claim 251136806, that at least should be treated as a validly constituted Notice of Appeal to that extent.  That is, as he put it, the main claim which he makes. 

18.	He argues that the two‑week period around Christmas puts him at a disadvantage and he also says that he should not be treated invidiously and compares himself with the treatment given to skilled advisers on the facts in Jurkowska.  

19.	He told me he moved on 7 December and the bundles moved with him.  The bundles included, in chronological order, all of the documents which are still erroneously described as “pleadings” in the Employment Tribunal.
The submissions

20.	The Claimant submitted that the Registrar had erred in law and I should reverse her Decision.  

21.	The documentation in respect at least of one of the cases was complete;  he was misled by the Rules of the EAT which describe in the singular the presentation of the ET1; and he challenges the assertion made on behalf of the Respondents that this case is hopeless.

22.	There are points of law in his appeal which should be considered if discretion is called for.

The Respondent’s case

23.	On behalf of the Respondent it is accepted that the Registrar got wrong the designation of the ET1s for there were two ET1s submitted on 21 December and yet the full documentation was not, and that is the relevant test.  The Claimant has not given a full adequate and satisfactory explanation as required by Mummery J in United Arab Emirates.  

24.	The Claimant gave unimpressive evidence which should not be accepted nor are these rare or exceptional circumstances.  This case is hopeless.  The Claimant had legal advice and still there is no indication as to how the Employment Tribunal fell into error.

Conclusions

25.	In my judgment, for a Notice of Appeal to be validly constituted the Rules require a copy of each ET1 and ET3, which is the subject of the judgment under appeal, to be lodged within time.  I have heard no submissions about complicated variations where, for example, there are multiple Claimants, multiple Respondents and cases which are not to be proceeded with on Appeal.  My judgment is confined to this case which is of a single Claimant, multiple claim forms and multiple Respondents.  This is a single judgment dealing with all claims the Claimant was then weighing against the nine Respondents and therefore the Rules require that all ET1s and ET3s should be submitted.

26.	If at some stage it had been indicated by the Claimant that he was not proceeding on appeal against one of the Respondents which had been identified in discrete proceedings under a different ET1, a different approach might (I do not form a conclusion about it) have been taken.  But as the Claimant told me, he sought to appeal against everything.  So, it behove him to produce ET1s and ET3s in the case.  They were exigible on Appeal, for the Respondent had produced the bundle and all he had to do was to submit that.

27.	I do not accept as credible the Claimant’s explanations based on his moving house - he actually had the documents with him - nor the problems of Christmas and the New Year.  Logically it would mean that any judgment sent after 11 November in any year would have an automatic extension.  The Claimant had adequate time before and after to seek advice.

28.	I do not hold him at fault in considering whether to appeal during the period before Christmas.  This was a very complex judgment.  He was right to go back to the CAB who had been assisting him.  Anybody appealing to the EAT requires to consider very carefully whether questions of law arise and should seek assistance, if possible, which he did.

29.	He told me that he was unable to get an appointment with solicitors as advised by the CAB until around 15 January.  That seems a very long period of time to me, and I heard no indication of whether he tried to get advice any earlier.  So he is to be criticised for not trying to advance the appointment, but nevertheless, if his appointment with solicitors was 15 January there was still time, albeit he was leaving it very close to the deadline.

30.	On that day he was told legal aid would be sought but he should submit his own Notice of Appeal and he did so on 18 January;  it arrived here on 21 January ie day 42. Following the advice on the website he phoned.  

31.	I accept, as the Registrar noted, the approach of Pill LJ in Dunham v Hull and East Riding Overseas Plastic Surgery (A2/2006/0214) (CA) where he said this:

“… the duty of complying with time limits is upon the parties to litigation and their advisers. If a party chooses, as this one did, to leave it very late, it is the responsibility of the party to ensure that the relevant document is served within the time limit. …  It is not the duty of a member of staff of the Employment Appeal Tribunal to advise litigants as to procedures to be followed.”

32.	.  It obviously is not the role of a case manager here to give advice to anybody.  However, as Mr Legard accepts “advice” was not given to the Claimant. What was given was simply a piece of information upon which the Claimant relied.  The information was that the material had arrived.  It is quite proper for a member of staff to give that information.

33.	As to the question: “Is it all right?”  it may be going too far for a member of staff to say: “Yes, it is”.  But this is a user‑friendly environment and I can well understand a case manager here seeing what was sent, which were two ET1s, an ET3 and a judgment, as being compliant.  He was not to know that the claim had been initiated by more than two ET1s and was not asked to inquire.  On a very rudimentary basis the information which he passed on was correct.

34.	On that basis the Claimant was entitled to regard his Notice of Appeal as having been properly constituted on that date.  It was not, but when this point was realised it was properly instituted three days later on 24 January 2008.

35.	I am asked to consider whether in the exercise of my discretion I should decline to enlarge time on the ground that this case is utterly hopeless.  I cannot at this stage form that conclusion.  As Mummery J says: “The merits will rarely be relevant at this stage”. I can say unequivocally that this case is doomed along the lines that Sir Christopher Staughton envisaged in Aziz.  This is a very long and complicated judgment and requires more intense scrutiny.  A very brief overview of some of the grounds of appeal given to me by the Claimant indicates to me that this is not a case in which I should form a view that it is utterly hopeless.  I do not say there are reasonable prospects of success; I simply say that I am unable to conclude at this stage that this case is utterly hopeless.

36.	I acknowledge that there will be grave inconvenience to the many Respondents in now being parties to this litigation. 

37.	I would also regard it as a ground for the exercise of discretion that the Claimant did file ET1s and an ET3 in respect of what he calls the main claim.  So there is (at least for the purpose of discretion, if not as a matter of practice) support for the view that he has filed sufficient materials to allow the appeal to be heard. I will exercise my discretion to enlarge time by three days in the exceptional circumstances which have been put before me.