Extending time - Case Round-Up September 2015

In this month's round-up, Mark Shulman consultant solicitor with Keystone Law, looks at recent cases concerning the exercise of discretion to allow an extension of time for claims and appeals.

Mark Shulman, Consultant Solicitor at Keystone Law

Extension of time
There is often reference to "lodging" or "presenting" an ET claim and consideration of whether it is "valid" or has been "accepted". Do these different terms have any legal significance in the context of presenting a claim in time? These issues were considered by the EAT in [Software Box Limited v Gannon ]()UKEAT/0433/14/BA.

The Claimant (who was in receipt of Jobseekers' Allowance) made a claim of unfair dismissal within the 3 month time limit, together with an application for remission of ET fees. The Central Processing Unit did not receive the remission application so the Claimant sent another. Her remission application was rejected. No "Notice to Pay" was enclosed despite the accompanying letter saying it was. A second Notice to Pay was sent to her representative (who was no longer acting for her) and the date for payment passed. After the Claimant asked what was happening with her claim she was told it had been rejected for non-payment of the £250 fee by the set date. She then promptly borrowed the fee and issued a second claim, believing up to that point that her first claim was still ongoing.

The employer argued that it was impossible for the Claimant to demonstrate that it was not reasonably practicable for her to lodge a claim in time because she had in fact done so with her first claim. However, an EJ held that it was not reasonably practicable for the Claimant to have made the second complaint within three months of her dismissal and that she had brought it within a reasonable time thereafter. The Respondent appealed.

When is a claim "presented"?
The EAT pointed out that although section 11 of the Employment Rights Act 1996 referred to a claim being "presented" within three months from the EDT, that word was not defined.

However, under the ET Rules in The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Rule 8 (headed "Presenting the claim") provides:

"(1) A claim shall be started by presenting a completed claim form… in  accordance with any practice direction made under regulation 11…."

Whilst there is a Presidential Practice Direction which sets out the methods by which a completed form may be presented, that could not affect the interpretation of primary legislation, but constituted guidance as to the way in which the powers conferred by the ET Rules may be exercised.

The EAT accepted the employer's argument that "presenting" a claim is a necessary step prior to the consideration of whether it should be rejected for any of the various reasons set out in the Rules. The wording in various Rules only made sense if the claim was "presented" in the first place to the ET before the process of rejection occurred. This was entirely consistent with the view of the earlier Rules which was stated as far back as Hammond v Haigh Castle & Co Ltd [1973] ICR 148, in which Sir John Donaldson said:

"… In our judgment, a claim is presented to a tribunal when it is received by the tribunal, whether or not it is dealt with immediately upon receipt. …" (page 151)

Therefore, the word "present" meant what it says in common language. It meant what Sir John Donaldson described in Hammond v Haigh Castle and which Harvey on Industrial Relations plainly considered it has meant in the context of the various editions of the Rules. That did not involve a precursor to a process such as "acceptance"; nor is there any distinction between presentation which is "valid" for some unspecified reason or "invalid".

The EAT concluded that the EJ's logic had been in error. Having described the process as "lodging" (no doubt to avoid using the word "presenting"), he then talked of the possibility that life could be breathed into a claim that had been "presented" but not "accepted" and expressed the concept of a claim which was not "validly presented". He then equated acceptance and valid presentation. "Acceptance" did not describe any process provided for by the Rules or by statute. Once a claim is presented, it is presented. No question of acceptance as a separate act was necessary. A claim which had been presented may be rejected for various reasons (e.g. it may subsequently be struck out, amended, modified or withdrawn). It may be heard and determined. The Rules provide that once a claim is presented, what can happen to it is not a process of acceptance, but a process of rejection or determination by one of the various means described.

The EJ had not dealt clearly with the employer's argument that it could not be said it was not reasonably practicable to present a claim before the deadline because exactly that had been done by the Claimant. The EJ was wrong in thinking that apart from extending time, there was no judicial route to fairness available in the present case where a fee was required to be paid by a particular date and had not been.

Rule 5 variation of time limits
Under Rule 5 of the ET Rules, "The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired". The EAT confirmed that an ET can extend the period of time within which it is decided that a fee should be paid and they may do so after the time has expired. If it did so, the effect of such a decision would be that the application to which the fee related would proceed.

Therefore, had the EJ been faced with an application for an extension of time within which the fee should be paid, the EAT would have held that he had the power to extend time should he have wished to do so. However, the appeal was not in respect of the EJ's failure to deal with the first claim (but only in relation to extending time for presenting the second one).

Not reasonably practicable
As to the second claim, the EAT considered that the EJ should have focused upon the claim by itself and the application of the "not reasonably practicable" issue in respect of that claim.

In Wall's Meat Co Ltd v Khan [1979] ICR 52 Brandon LJ said (at page 60F):

"… The…presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable".

Although the EJ had considered the reasonableness of the Claimant's understanding of the position at the time of her second application, it was not clear why it was thought to be reasonable as there were no findings (other than implicitly). Further, in considering the reasonableness of the Claimant's ignorance of her position, the EJ failed to deal clearly with the question of whether the Claimant should have made further enquiries after receiving the ET's letter explaining that a fee was payable, even though it did not provide details of the date by which it should be paid. Therefore, the EJ had erred in his reasoning.

Did that mean that there was only one conclusion (i.e. that because there had been a complaint made within three months, the second claim could not be shown to be one which it was not reasonably practicable to make earlier)? No, said the EAT. The fact that a complaint was made within time and then rejected did not as a matter of principle preclude the consideration of whether a second claim traversing the same ground was one in which the ET should have jurisdiction (subject to the doctrine of abuse of process).

The approach to reasonable practicability (as in Wall's Meat v Khan), required a focus upon what was reasonably understood by the Claimant. This required looking at the time when the second claim was presented and the EJ asking whether, given what was reasonably understood by the Claimant at that time, it had not been reasonably practicable for her second claim to have been presented in time and, if had not been, whether it had been presented within a further reasonable period.

Therefore, in a case where the Claimant reasonably (but mistakenly) considered that there was no need for her to make a claim (and did not understand for very good reasons that the time limit applied to a further claim) because she thought she had already made a claim which remained effective, it was open to an ET to consider a second claim made once she realised that her view was mistaken. Accordingly, the ET could decide to permit her second claim to continue if it was not reasonably practicable to bring that second claim earlier.

Although the appeal succeeded because the EJ had erred in his reasoning, the consequence was that the matter had to be remitted to the ET to consider the matter of the second application afresh.

The EAT commented that in future cases practitioners will in all likelihood have regard to the possibility of applying for an extension of time for payment of the requisite fee, as the EAT suggested was possible. An alternative would have been to apply for an extension of time in respect of the first application.

Practical tip

Where a Claimant's application for a fee remission is rejected and the date is missed for paying the required fee and their claim is rejected:

If they are still within the primary time limit, they could consider:*

*-  issuing a new claim;

If they are outside the primary time limit, it might be possible to:*

- apply to extend time (under Rule 5) for the fee payment relating to the claim;

- seek an extension of time for pursuing the claim;

- issue a further claim (as occurred in the present case) and argue that it was not reasonably practicable to lodge it earlier (although this will very much be fact dependant).

Extending time to add a party
Was an EJ right to extend time in exercising her discretion under section 123(1)(b) of the Equality Act 2010? No, said the EAT in *[Harden v Wootlif & Anor* ]()UKEAT/0448/14/DA.

The Claimant made various claims against R1 which was a corporate entity and one claim of harassment against R1's Chairman (named as R2 in the proceedings). The claim against R2 was out of time but the ET considered whether it was just and equitable to extend time. The extension was allowed with the EJ saying:

"In terms of any prejudice affecting the Respondents, I accept the Claimant's submission that the matters he raises in relation to the harassment complaint would need to be considered as background at the substantive hearing in any event. As a consequence, the complaint as pleaded adds little to the remainder of the Claimant's claim."

R2 appealed. The principal ground of appeal was that the EJ failed to consider the balance of prejudice of bringing the complaint of harassment against R2 separately from such considerations in relation to the claim against R1. The complaint of harassment was the only complaint to which R2 was a Respondent. The remainder of the claims were against R1 although R2 may have been a witness in R1's case.

The EAT agreed with R2's submission. Being a Respondent to a claim is very different from being a witness. In deciding whether it was just and equitable to hear the claim of harassment, the EJ was required to consider all relevant circumstances. There were two Respondents to the complaint of harassment in circumstances where different considerations were in play in relation to each Respondent.

Accordingly, the EJ was required to consider whether to extend time on a just and equitable basis in respect of each separately. The complaints as pleaded, it was said by the EJ, added little to the remainder of the Claimant's claim. It was on that basis that, on a fine balance, the EJ decided that it was just and equitable for the complaint to be heard. That was true in respect of R1, but not in respect of R2 who faced no claims apart from harassment. The EJ had therefore failed to recognise that no claims remained against R2 if the out of time harassment claim did not proceed. Therefore the justification for considering it just and equitable that the harassment claim should be heard, (i.e. that the background would be relevant to "the remainder of the Claimant's claims") did not apply to the claim against R2.

Accordingly the EJ had erred in law and the appeal was allowed.

*Practical tip
Where there is an application for an extension of time to bring claims against more than one Respondent, it is necessary to consider the position of each Respondent separately when deciding whether to extend time.
Appeals to the EAT
Was the Registrar of the EAT right to extend time for an appeal even where there were no acceptable reasons for a late appeal? Yes, said the EAT in [Ministry of Justice v Burton & Anor ]()UKEATPA/1215/14/LA.

Rule 37(1) of the EAT Rules provides:

"The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged …"

Rule 3(3) of the Employment Appeal Tribunal Rules 1993 provides that an appeal must be made within 42 days from the date on which Written Reasons were sent to the parties. That Rule is supplemented by the 2013 Practice Direction.

An ET had found that the two test Claimants, who were fee-paid part-time judges of what is now the Residential Property Tribunal, were less favourably treated than their full-time comparators (the claims of parity had arisen in consequence of the decision in O'Brien v Ministry of Justice. The Ministry of Justice ("MOJ") appealed but their Notice of Appeal was out of time. It was not until 4.09pm on the last day for appealing that the Notice of Appeal began to be served and it was not completed until 4.11pm. It was therefore out of time because even if the electronic transmission of a Notice of Appeal to the EAT begins before 4pm, if it finishes after that time, the appeal is out of time and an extension of time will usually be refused.

The Registrar extended time and one of the two lead Claimants appealed (the other was out of time to do so).

*Principles to be considered
*The EAT referred to the fact that exercise of the power in Rule 37(1) is subject to the overriding objective (set out at Rule 2A). The principles upon which an application for extension of time should be granted were seminally expressed in the decision of Mummery J in President in United Arab Emirates v Abdelghafar [1995] ICR 65. Mummery J discussed the exercise of the discretion which Rule 37 permitted. In doing so, he noted:

"… The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses" (page 70).

Accordingly, an extension of time was an indulgence requested by a party in default. That party is not entitled to an extension. They have no reasonable or legitimate expectation of receiving one.

Reasons for delay
The Treasury Solicitor's Department did not provide what the EAT considered was an acceptable explanation for the delay in lodging the appeal. However, the request for an extension relied upon the fact that:

* the lawyer at Treasury Solicitors dealing with the matter was under the misapprehension that the deadline was 4.30 not 4.00; * the appeal was lodged only a few minutes late; * the delay was a fleeting mistake by a legal advisor who was under pressure; * the situation was complicated by the fact that the deadline had expired in the Christmas holiday period; * the Claimants were lead Claimants and there was a public interest in the subject matter of the litigation; * the suggestion that the Ministry of Justice could devote a larger team to managing this litigation was unrealistic in the context of public sector cuts in available resources.

It was not argued that it was impossible to file the appeal earlier within the 42-day period. But, as the court noted in Muschett v HM Prison Services [2009] ICR 424, the test is not whether it was "not reasonably practicable" (as it would be in a case concerning time limits in unfair dismissal claims). The fact that the appeal could have been filed earlier is a relevant factor but not decisive. The  MOJ also contended that the overriding objective very strongly favoured genuine issues being decided.

The Claimant in resisting the appeal pointed out the irony that the Ministry of Justice should have been particularly aware of a time limit which it originally had played a part in setting. Further, it was argued there was prejudice in the sense that as a potential Respondent to the appeal, he was aged 72 and had suffered recent and serious illness which might limit his life expectancy. The litigation for him began in 2011 and although he had succeeded in part, no compensation had been forthcoming from the MOJ in respect of his service in the Residential Property Tribunal. He argued that, if there was to be an extension of time, it should be on particular terms as to the making of an interim payment of compensation. Another contention was that the actual merits of the appeal were relevant (which the EAT accepted was the correct legal position, except where an appeal truly had no hope, which may then be taken into account).

Exceptional case
The EAT considered that in a jurisdiction which requires all the relevant circumstances to be considered, it was impossible to be fully prescriptive in advance of those which might fall on one side of the line or the other. No two cases, if they are exceptional, will have exactly the same features. It concluded that there was no acceptable or good reason for the delay by the MOJ in lodging the appeal. However, the EAT was nonetheless persuaded that in the circumstances of this particular case, which were "so unusual" as to be "exceptional", time should be extended. The nature of the case was such that the consequences of the lead cases under consideration would apply not simply between two private litigants, but to a cohort of 35 Claimants and could affect 138 judges.

Taking account of the requirements in the overriding objective, including the unusual nature of the case and the potential consequences, it was considered appropriate to extend time. But the extension was with the provisos that:

* the parties should consult with the List Officer so as to set a putative date for the appeals (if they passed the EAT sift); and * it was a condition of granting the extension that the MOJ paid the sum offered of £2,500 towards the Claimant's costs (although an extension of time could not be bought, it was an offer which the EAT recognised as appropriate).

*Practical tip
**Late appeals to the EAT will not usually be permitted (unless there are exceptional circumstances).

Whilst this was an exceptional case, reference was made to more everyday issues. In particular, the President took the opportunity to refer to "…the Practice Direction made most recently in 2013, which at paragraph 5 contains nine subparagraphs concerning the time for appealing. This largely repeats earlier directions, and employment practitioners are expected to be fully familiar with it, as well as with the guidance which is currently available on the website. That makes it clear that the working day for the Appeal Tribunal finishes at 4pm and any correspondence or Notice of Appeal delivered after that time or in part after that time is regarded as received on the day following."*

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.

Published: 14/09/2015 09:40

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