The claimant had lost her case in the ET, and appealed to the EAT. A Pre-hearing review was listed which the claimant wished to have postponed. The postponement was refused, but agreed on appeal. Her case was then dismissed on the sift by the President, allowing the claimant 28 days to express her dissatisfaction with the decision under rule 3(10). Unfortunately the claimant misread the time limit, thinking she had 42 days to respond, thus submitting her response 3 days late. The Registrar refused to extend time, saying that there were no grounds for assuming that the claimant was unable to deal with matters in a timely fashion. Indeed, the claimant was conducting other proceedings at the time, and fully understood the process.

In this appeal, the claimant claimed that the medication she was taking affected her ability to deal with issues in writing. However, the EAT ruled that there was no medical evidence which indicated that she was so confused that she could not submit her form in time, and further that, whilst still on the medication, she managed to make the application, albeit 3 days late. The appeal was dismissed. The EAT also looked at the 3 tests in rule 3(7) and held that an appeal would fail in any event: it would be an abuse of process; it would obstruct the just disposal of the ET proceedings; and it had no prospect of success.

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Appeal No. UKEATPA/1510/09/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 23 April 2010

Before
HIS HONOUR JUDGE McMULLEN QC

DR A C EVANS (APPELLANT)

THE UNIVERSITY OF OXFORD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

APPEARANCES

For the Appellant DR A C EVANS
(The Appellant in Person)
For the Respondent Written submissions

**SUMMARY
**PRACTICE AND PROCEDURE
Postponement or stay
Time for appealing

The Employment Judge refused the Claimant’s application for a postponement of a Pre Hearing Review. The Respondent did not object.  She appealed. The Tribunal then postponed the PHR. The appeal was rejected on the sift. The Claimant did not apply under Rule 3 within 28 days and the Registrar correctly refused to extend time.

In any event the appeal would fail all three tests in rule 3(7): it is an abuse of the process of the EAT as the appeal is academic and the remedy is now out of reach, it will obstruct the just disposal of the Employment Tribunal proceedings, and it has no prospect of success being an interim appeal against a case management decision: Caston per Longmore LJ.

The Claimant did not make out her claim as a victim under ECHR Arts 3, 4, 5, 6, 8, 9, 10 and 11.

HIS HONOUR JUDGE McMULLEN QC

1. This is an application under rule 21.  The parties to the proceedings are Dr Evans, the Claimant, and the University of Oxford, the Respondent.  The history of the relationship is contained conveniently in a Judgment of HHJ Peter Clark who decided under rule 3 three appeals on 14 October 2009 (see paragraph 2 and following which I adopt). That has been appealed and on 29 April 2010 a three-Judge constitution of the Court of Appeal will hear the Claimant’s application for permission. [It was refused].

2. I will return to this because although I have indicated to Dr Evans, who appears today and represents herself, that it is not for me to do anything about Judge Clark’s Judgment, she wishes as part of today’s proceedings for my ruling to have an impact upon it. If I were to set aside his Judgment she would withdraw her application to the Court of Appeal.

3. Formally, the vehicle for today’s hearing is an appeal against the Registrar under rule 21.  The substance of the appeal is a decision by Employment Judge Byrne at Reading in a letter dated 5 November 2009 to refuse the Claimant’s application for a postponement of a PHR listed for 19 November 2009. This Notice of Appeal dated 17 November 2009 seeks to challenge that decision.

4. The order sought is “a readjustment of the power balance between the parties”; alternatively that the Employment Tribunal’s Judgment of 26 November 2008 be revoked.  On the paper sift, Underhill P took the view that there was no arguable point of law.  The process is as I described it in Haritaki v SEEDA [2008] EATPA/0006/08 paragraphs 1 to 13 should be read with this Judgment.  A fresh application is made at a hearing and if this were the route I would be making my own decision.

5. The President’s opinion was sent on 17 November 2009 and 28 days were given by the rule for an expression under rule 3(10), thus the deadline was 15 December 2009.  Such dissatisfaction was expressed in writing on 18 December 2009; it is three days late.

6. The first issue for the Registrar was whether or not to exercise discretion.  This is an open discretion.  I have described it in detail as the relief from sanctions jurisdiction, see Roberts v Carling UKEAT/0183/09.  The Court of Appeal has decided that the time limits apply equally throughout our jurisdiction and to an application under rule 3(10), see Morrison v Hillcrest Care Limited [2005] EWCA Civ 1378.  The Registrar was exercising a discretion based upon what the parties told her.  The Respondent has delivered written submissions and has decided to play no part in this proceedings relying instead on the Registrar’s Decision which was this:

“The Appellant admits that she made a mistake in reading the information and the extract of the rules provided with the Rule 3(7) rejection letter.  She excuses this lapse by stating that she has been on medication since January - presumably January 2008.  However during that time she has conducted litigation against the Respondent, filed two other appeals and appealed to the Court of Appeal.  There are no grounds for assuming that she is unable to deal with matters in a timely fashion.  The Appellant is an experienced litigant and fully understands the process.  In Jurkowska v Hlmad Ltd [2008] EWCA Civ 231 Lord Justice Rimer stated,

“litigants are not entitled to expect rules of practice to be rewritten so as to accommodate their own negligence, idleness or incompetence.””

7. The issue now presented to me is in a slightly different form.  The medication issue has been the subject of direct evidence given by the Claimant under oath upon which I have asked her some questions.  The gist is that the medication that she was taking affected her ability to deal with issues in writing.  She had anxiety, things were confusing to her, she had asked for a different brand of medication, her concentration was impaired.  In addition, she was required to sign on for her unemployment benefit.  In the final week, that is 14 to 18 December 2009, she had an appointment for psychoanalysis which took place on 15 December 2009.  She also raised a new matter which is that she lives in a room which is also her kitchen where she keeps all her papers and her laptop.  That housing limits her ability to read papers and carry out written tasks.

8. The Registrar took a view about the medication.  It is a view that I share.  The Claimant has demonstrated prolific correspondence dealing with Employment Tribunal proceedings.  She indicates she is engaged in other proceedings to do with housing and, of course, she has been involved at the EAT.  It seems to me that whatever medication she was on dated from more than a year earlier, and secondly, did not impair her ability to conduct proceedings.  She accepted she made a simple mistake by misreading the obligation under rule 3(10) to submit an application within 28 days thinking she had 42.

9. Dr Evans is an articulate, educated person.  She was provided with the relevant texts making this clear and I see no medical reason on the evidence which has been presented to me to indicate that she was so confused that she could not put in the form.  As to the psychoanalysis appointment on 15 December 2009, I do not see that this assists or excuses her.  This was the very last of the 28 days and I have had no explanation apart from the foregoing of a general nature to indicate why the Claimant did not put in an application under rule 3(10) at any stage after 17 November 2009.  In any event, whilst still under the medication, as I understand it, she was able to make the application, albeit three days late. I see nothing in the housing issue: the Claimant conducted this and other cases without it impinging.

10. In these circumstances, while I understand Dr Evans’ difficulties, the rules are be clear and I do not consider this is a case where I should make an exception and extend time so as to enable this appeal to go forward.  The appeal under rule 21 is dismissed.

11. However, in deference to the care which Dr Evans has nurtured on this appeal, I will express a view, lest I be wrong in the foregoing, about the substance of this rule 3(10) case. Dr Evans agreed that this would be appropriate.  She has put before me the material which she wishes to raise in her application against the opinion of the President.  In pre-hearing case management I drew her attention to the relevant authorities.  I take the same view as the President as to the merits of this case.  New material available to me is that the Claimant has achieved the result she sought, for the hearing listed for 19 November 2009 was indeed vacated.  It may be, and the Claimant feels this was the case, that the Employment Judge adjusted his position it because of the attitude of the Respondent.  I can understand that. Faced with an application by the Claimant to take the case out which was not opposed by the Respondent, it would seem pragmatic to do so.

12. I would have thought that the Claimant would have been relieved but she is not.  She continues to seek the remedy which I have set out above.  Proceedings are at the moment ongoing in Reading and possibly are affected by this appeal.  There are proceedings in the Court of Appeal.

13. I would hold that all three limits of rule 3 apply.  This was an exercise in discretion by the judge and appeals to this court are rare, successful appeals are rarer (see the Judgment of Longmore LJ in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298).  This was a simple and elementary exercise in discretion and case management by the Judge and there was no error in it when he made his decision.  Inasmuch as that was the sole basis of the President’s opinion, I agree with it.

14. I consider this appeal is academic.  For the reasons I gave, and were approved in the Court of Appeal in Edem v Egg Plc & Ms J Croft UKEATPA/0304/07/ and 1600/06 there is no utility in an interim appeal where the matter has already been resolved.  It is an abuse of the process of the EAT to seek as a remedy on appeal something which has already happened.  The Claimant has achieved the setting aside of the Judge’s decision to go ahead with the PHR on 19 November 2009; the Judge himself did that.  Abuse of process sounds much worse than it is but it is in the rule and I hold that it is an abuse of the process of the EAT to continue to pursue this appeal in the light of the facts.  Further, there will also be an impediment to the just handling of proceedings both in the ET and the EAT, for this matter can now be dealt with at the ET.  I would hold that there is no prospect of success.

15. I have taken the time to express this opinion because the substance of the Claimant’s case is a grievance with the Reading Tribunal - she has lost confidence in it.  The remedy she seeks in the Notice of Appeal is simply outside the powers of the EAT.  She cannot achieve the conceptual remedy she seeks. As a matter of substance the Claimant wants somebody to set aside the Judgment of the Reading Tribunal.  That was the issue for Elias P on the sift and of Judge Clark on the application in 2009 and is before the Court of Appeal next week.  I have no control over that.

16. It is misconceived for the Claimant to consider that the current appeal is going to achieve any practical result for her. I have read Dr Evans’ fuller case, including the arguments which she raises under the European Convention on Human Rights. She says she is a victim of violations of her convention rights, including servitude, dignity, freedom of association and so on.  She draws my attention to eight violations contrary to articles 3, 4, 5, 6, 8, 9, 10 and 11.  She may be assured that I have taken fully into account every opportunity there may be for her to challenge in this particular appeal her treatment under each of the foregoing heads, but there is no substance in any of them.

17. When I pointed out to Dr Evans the next stage in these proceedings she asked me for permission to appeal against my ruling under rule 21.  There is no prospect of the Court of Appeal deciding differently for, again I invoke Longmore LJ, “Unsuccessful appeals to the Court of Appeal are even fewer.”  There is no compelling reason for this matter to go any further and I hope that it will be of assistance to the parties and to the Court of Appeal for me to have given my view were I dealing with this under rule 3(10), because the Claimant would still have to get over that hurdle too.

18. After disposing of this matter Dr Evans drew to my attention three further documents.  One is confirmation of the medication she was on and I have noted that she was taking Fluoxetine Hydrochloride last issued on 11 November 2009.  She has also shown me an appointment with her GP for 20 April 2010 and a reference in relation to a job currently being advertised, but these are, as she put it, off-issue.  The medication label gives no indication as to how it impeded her ability to make an application under rule 3(10) in the period of 28 days from 17 November 2009.