Case No: A2/2009/2218

Neutral Citation Number: [2010] EWCA Civ 742

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE McMULLEN QC)

UKEATPA/0145/09/DA

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Thursday, 27th May 2010

Before:

LORD JUSTICE RIMER

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JOHN HARPER & ANOTHER (**Appellants)

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GEORGE EDWARD HOPKINS (Respondent)

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(DAR Transcript of

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The Applicants appeared in person.

The Respondent did not appear and was not represented.

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Judgment **(As approved by the Court)
**Crown Copyright©

**Lord Justice Rimer:
*1. This is a renewed application for permission to appeal. The applicants are John Harper and Julie Watson. They have appeared in person. The decision they wish to challenge is the dismissal by an order dated 6 August 2009, made by His Honour Judge McMullen QC in the Employment Appeal Tribunal, of their appeal against the order dated 27 March 2009 of the Registrar of the Appeal Tribunal, Ms Donleavy. By her order, the Registrar had refused to extend the applicants' time for appealing against a judgment of an Employment Tribunal the reasons for which were sent to the parties on 21 November 2008. Judge McMullen treated the appeal before him as a hearing de novo* of the application for an extension of time. He heard evidence from both sides and made certain findings of fact. He refused permission to appeal to this court on the basis that an appeal had no prospect of success. Mummery LJ refused permission on the papers on 5 March 2010 on the same basis, saying that the grounds of appeal disclosed no arguable error of law in the way in which Judge McMullen had exercised his discretion.

1. I need to explain the background to this unfortunate story, which is as follows. The claimant in the proceedings, and respondent to this application, is George Hopkins. On 6 November 2007 he presented an unfair dismissal claim against the applicants in the Leeds Employment Tribunal. His ET1 described their address as the Ramshill Hotel, a hotel in North Yorkshire that he said Mr Harper had taken over in 2007. He said he had been employed as a bar/cellarman by the applicants since August 1995, although I presume he meant that he had been employed at the hotel since then. He claimed that, without warning, Mr Harper summarily dismissed him on 28 September 2007. This was said to have followed hard upon an incident between Mr Hopkins and his partner resulting in his arrest. His claim was for compensation for unfair dismissal.

1. An ET3 completed by the applicants in person on 7 January 2008 admitted that Mr Hopkins had been an employee and had been dismissed. It claimed he had been summarily dismissed for gross misconduct in the nature of an assault on his wife, also a hotel employee. One inference from the ET3 is that the employer, and proper respondent to the claim, was Traditional Hospitality Inns Limited ("THI"), the company of which the applicants either are or were the directors, and which they said had taken over the hotel on 5 July 2007. The ET3 did not, however, flag up expressly that Mr Hopkins had directed his claim against the wrong target, although the applicants now make it plain that they say he had, and they have, amongst other things, included in the papers before the court his P45, which showed that Ramshill Hotel (which according to a piece of notepaper I have seen is or was a trading name of THI) was his employer. Their ET3 also asserted that his employment had started on 11 July 2007 and had, as is common ground, terminated on 28 September 2007. It also accepted that he had been at the hotel for some 12 years. I understand that the applicants are no longer running the hotel, having, according to one of their several manuscript representations, been forced out of it by the landlords on, I think, 18 January 2009, although the precise date is obscure in the relevant written submission.

1. According to the judgment of Judge McMullen delivered in the Appeal Tribunal on 6 August 2009, judgment in default in Mr Hopkins' claim was on 15 January 2008 entered by Employment Judge Hepworth against the applicants. I have no papers actually showing that, and Mr Harper, who has been the spokesman on behalf of both applicants, claims to have no recollection of it, but I propose to proceed on the assumption that Judge McMullen was right and it is consistent with what else one sees in the papers.

1. The reason for the default judgment was, I understand, that the applicants' ET3 had been filed late. The consequence of the default judgment was that a remedy hearing was due to follow, but it also appears from the papers that the applicants applied for a review of the entry of the default judgment, one directed at achieving permission to file their ET3 out of time, although again Mr Harper does not appear to recall that he made such an application. A hearing was fixed for 17 June 2008, but upon the applicants' request it was adjourned on 12 June by an order that described the respondent to Mr Hopkins' claim as "the Ramshill Hotel", which appears to have been inconsistent with his ET1. The hearing was re-fixed for 26 June, when the first matter due to be dealt with, according to the papers I have seen, was the applicants' review application. If that application were to prove successful, the full hearing of Mr Hopkins' claim, including as to remedy, was to follow; and I presume that if it proved to be unsuccessful, all that would follow would be the remedy hearing.

1. That hearing was, however, also postponed and a further one fixed for 21 July. By an order of 18 July, however, in which the applicants rather than the Ramshill Hotel were now again named as the respondents to Mr Hopkins' claim, a new hearing date was fixed for 27 August. That hearing was postponed as well, the new hearing date being fixed for 30 September.

1. Then, however, there arose difficulties in the applicants' path in attending that hearing. Ms Watson was the victim of an assault on 28 September and suffered injury. As a result, on 29 September the applicants sought an adjournment of the hearing. It was refused on the same day by Employment Judge Burton. I have not, I think, been provided with a copy of the application for the adjournment and do not know how it put the case for an adjournment. In particular, I do not know what reason, if any, was advanced as to why Mr Harper would be unable to attend the hearing, even if Ms Watson was so unable; and on asking Mr Harper about that matter this afternoon, he has candidly accepted that there was no sound reason why he could not have attended it, although he was extremely upset by the assault on Ms Watson, and I think the thrust of his response was that he was not in the right frame of mind to deal with a case in an employment tribunal.

1. The Tribunal's email in response to the adjournment application was sent to Mr Harper at 4.41 pm on 29 September, and it informed him of the refusal of the adjournment, saying that the ambulance service report, which I presume had been provided to the Tribunal, did not suggest that Ms Watson would be unable to attend the hearing, and the email informed the applicants that they should attend the hearing the following day. The following day, at 10.28 am, Mr Harper emailed the Tribunal to say that Ms Watson was in bed and unable to move. He did not say why he could not be at the hearing; and, as I have said, he did not attend it.

1. In those circumstances, the hearing fixed for 30 September went ahead in the absence of both applicants. The matter was heard by a tribunal of three; I have found nothing in the papers providing a direct record of the outcome of that hearing, but I presume that the review application was dismissed, nobody having attended to advance it, following which the Tribunal proceeded to assess the remedy to which Mr Hopkins was entitled under his default judgment. He was apparently awarded something approaching ?10,000. The Tribunal's judgment was signed and sent to the parties on 13 October 2008.

1. At that point, the applicants retained Peninsula Business Services Limited to act for them in the Tribunal proceedings. On 22 October Maria Farnell of Peninsula (an advocacy preparation service manager) wrote to the Regional Secretary of Employment Tribunals to inform him/her that Peninsula had been appointed representatives of "Ramhill Hotel" [sic] in Mr Hopkins' claim. She gave the Tribunal case number and asked for all future correspondence to be addressed to Peninsula on Ramshill's behalf.

1. On 24 October John Granger of Peninsula wrote to the Regional Secretary on the applicants' behalf requesting a review of the judgment of 30 September. His letter explained why Ms Watson had been unable to attend the hearing on 30 September; and explained that Mr Harper had witnessed the assault, an event that had so affected him as to render him unfit to give evidence because of his concern for Ms Watson. It pointed out that this had been explained to the Tribunal on 29 September, which had nevertheless ruled that the hearing should go ahead on the following day.

1. On 21 November, Peninsula, this time by Bertrand Stern-Gillet, wrote again to the Regional Secretary, reminding him that it represented the applicants and had written on 24 October requesting a review of the judgment of 30 September. He pointed out that Peninsula had received no reply and asked for one. Peninsula wrote to Mr Harper on the same day to inform him that it had sent that reminder to the Tribunal.

1. By coincidence, also on 21 November, the judgment of Employment Judge Whittaker refusing the review application, together with written reasons, was sent to the parties, meaning as regards the applicants that it was sent to Peninsula, their representatives. Peninsula had, however, not received it before emailing Mr Harper on 25 November (in reply to an email from him), saying that they would inform him of the Tribunal's decision when they received it. Precisely when Peninsula did receive it is, so far as I am aware, unknown. What is known is that they had received it by 15 December 2008, when they posted it to Mr Harper. They also wrote him a separate letter of the same day saying they had "now received" the Tribunal's decision, although without saying when they had done so. As Judge McMullen found, the applicants received the judgment and reasons on 20 December, when Peninsula's letter of 15 December arrived.

1. The ground for the refusal of the review application was that a review had no reasonable prospect of success. The written reasons explained that the Tribunal had on 30 September considered and rejected the applicants' reasons for not attending that hearing and had refused the adjournment application. They explained that Mr Harper had not shown any valid reason why he could not be present on 30 September. They explained that Peninsula had made representations on 24 October but that the matters they had raised had been considered at the hearing on 30 September.

1. The time within which it was open to the applicants to appeal to the Appeal Tribunal against that refusal was a 42-day period running from the date when the reasons were "sent to the parties": see Rule 3(3) of the Employment Appeal Tribunal Rules 1993, as amended. That means the date on which the reasons were sent rather than received: see Sian v Abbey National plc [2004] IRLR 185, a decision of the Employment Appeal Tribunal which is in line with the understanding of the operation of the rule accepted by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. In Aziz the reasons were sent on 24 March 1998, although were only received later, but the court held that the time for appealing expired on 5 May, being 42 days calculated from 24 March. In the present case, the Employment Tribunal sent the reasons to Peninsula rather than to the applicants direct, which is what Peninsula had asked the Tribunal to do in its letter of 22 October; but for the purposes of the applicable rules, that is the equivalent of sending them to the parties direct: see the two closing lines of Regulation 61 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The rules, therefore, treated the reasons as sent to the applicants on 21 November 2008.

1. The result of that is that the time for appealing against the refusal of the review application ran from 21 November 2008 and expired on 2 January 2009. The applicants' Notice of Appeal to the Appeal Tribunal was filed on 10 February 2009, which was 39 days late. Even then, it did not comply with the Appeal Tribunal's rules for the valid institution of an appeal since it did not include various documents that must accompany a Notice of Appeal, the omission of which means that the notice is not validly filed. I infer that the missing documents were then provided. The Registrar at the Appeal Tribunal considered that by then the notice was 47 days late.

1. The applicants disagree fundamentally with the suggestion that their Notice of Appeal was even as much as 39 days late, since they insist -- or at any rate, their written representations insisted -- that the time for appealing ran from the time that they themselves actually received the judgment and reasons that Peninsula forwarded to them on 15 December. That was 20 December. Even if that was the applicable date, time for appealing expired on 31 January 2009, and so the applicants were still ten days late, although they say that they should be excused this because both were ill in January and early February 2009. But, with respect to the applicants, they are wrong on their submissions as to time. Time expired on 2 January 2009, although I am prepared to accept that they made a mistake about that and I understood Mr Harper, in the course of discussion this afternoon, to recognise that he did make that mistake.

1. The Registrar refused an extension of time, referring to well-known authorities in this area to the effect that it will only be in exceptional cases that the generous 42-day period will be relaxed, and explaining that the applicants had provided no evidence as to why it was not possible to file the notice within that period.

1. Judge McMullen, hearing the applicants' appeal against that decision, heard evidence from them. He recorded that Mr Harper knew of the 42-day time limit for appealing but assumed it ran from 20 December 2008 when he received the judgment and reasons. He also found that Mr Harper made a deliberate decision to defer filing his notice until early in the New Year because the days in between were busy days at the hotel for everyone there, including the applicants. Judge McMullen explained that Mr Harper had plainly not considered the clear terms of the judgment booklet which accompanies every Tribunal decision and which Mr Harper confirmed to me he too received. It explains the date from which time runs. Judge McMullen also explained that, unfortunately, Mr Harper was taken seriously ill on 29 December and was in hospital from then until 7 January 2009. When he was discharged he was still suffering the after-effects of his ordeal and so did not, in the event, submit a Notice of Appeal until 10 February 2009. The judge found that Ms Watson was also ill during January, although the evidence before him did not prove when that illness began and he said there was no indication that she had been ill before January 2009, the particular period in which he was interested being of course the last ten days of December.

1. On 11 August 2009 Ms Squires of Scarborough and Northeast Yorkshire Health Care NHS Trust wrote a "To whom it may concern" letter, explaining that Mr Harper was admitted to hospital on two days in late December 2007, that he attended hospital on 12 September, 22 December and 29 December 2008, and that he was an in-patient between 30 December 2008 and 5 January 2009. On 13 August 2009 Dr Newman of Churchfield Surgery wrote a "To whom it may concern" letter explaining that Ms Watson had been suffering illness for some years, aggravated by an assault on 28 September 2008 which was said to have prevented her attending the hearing on 30 September 2008. That inability was said to have caused a deterioration in her ongoing anxiety and depressive symptoms. She was admitted to hospital on 20 January 2009 suffering from a chest infection but was discharged on the same day. Earlier, on 27 February 2009, Dr Newman had written a letter explaining that Ms Watson had a prolonged period of ill health in January and early February 2009, during which she had two hospital admissions, and "was pretty much confined to bed the rest of the time" and "certainly unable to leave the house for this period". Dr Newman wrote a further letter about Ms Watson's health on 13 August 2009 but it does not add materially to her other letters: in particular, it does not prove that Ms Watson was suffering any incapacitating illness in December 2008 that would have prevented her from filing a Notice of Appeal during the few remaining days of the 42-day period.

1. The applicants' Appellant's Notice to this court appears to have been filed on 12 October 2009, also some six weeks late. I asked Mr Harper what the explanation was and he said he had endeavoured to file the notice within the 21 days prescribed by the order of Judge McMullen, a period which expired on, I think, 28 August, but that the court had declined to accept it without being accompanied by a transcript of Judge McMullen's judgment. He told me that that transcript was only obtained in, I think, early October, following which he was able to file the Notice. It does, however, appear that on any footing, the Notice was filed out of time and so an extension of time for doing so would be required.

1. The grounds of appeal assert that the applicants have never had a trial and they make much of the claimed injustice of the consequences upon them of their claimed inability to attend the hearing on 30 September 2008. A major part of their representations has been devoted to the claimed merits of their position in the substantive claim. I am prepared to assume that they might, on the merits, have had an arguable defence to Mr Hopkins' claim. One aspect of their case is that the correct respondent was THI, not either applicant personally. I can well understand that they feel that an injustice has been done to them insofar as they have not had a hearing at which they have been able to put their case, although my sympathy in that respect is moderated by what appears to be a lack of any convincing explanation as to why, whatever Ms Watson's problems were, at least Mr Harper thought it appropriate to ignore the Employment Tribunal's message on 29 September that the applicants should attend the hearing the following day. I have seen no medical evidence supporting his decision to stay away and, from what he has told me, I apprehend that there could be none. His decision to do so was a high-risk strategy which, in the event, may prove to have been a fatal one. I am, however, also prepared to assume that if the applicants were allowed to pursue an appeal against the refusal of their review application, they would at least have an arguable case. For present purposes, it is not material to say more about the overall merits of their position in the proceedings than that.

1. The applicants also assert that the only extension of time they need is one of some 11 days. As I have said, they are wrong about that. Time ran from 21 November 2008, although they did not know that it was so running. They also say that Judge McMullen was wrong to say that they made a deliberate decision not to file the Notice of Appeal until the New Year. I understand them to accept that they did decide to leave the filing of the notice until January, but only on the mistaken basis that they had until the end of January in which to do so. Illness, they say, then got in the way of filing it in the time they mistakenly thought they had. I also understand that it was not until either 13 or 16 January 2009 -- their statement relating to this gives both alternatives on pages 4 and 10 -- that they recovered the papers in the case from Peninsula, with whose services they had in the meantime dispensed.

1. The law in this area is now fairly well settled. The Appeal Tribunal's jurisdiction to grant extensions of time for appealing was explained in Mummery J's judgment in United Arab Emirates v Abdelghafar [1995] IRLR 243; the approach he explained being approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. The key to it is that the 42-day period in which an appeal may be filed is unusually generous compared with the 21-day period that applies in the court system. As Mummery J explained in paragraph 27, when parties are informed of an Employment Tribunal's decision they are also informed of the 42-day time limit and there is no excuse for ignorance of it even in the case of unrepresented litigants. Those who are late in appealing must provide an honest explanation for their delay, and if there is a good excuse then an extension may be granted. Most explanations for any delay are, however, insufficient; and one of such insufficient explanations, as Mummery J explains in paragraph 28, is ignorance of the time limit. Even the most minimal delay may be fatal. The applicants, therefore, had an uphill task to persuade the Registrar that they should have what she assessed to be a 47-day extension, and it is no surprise that she refused their application.

1. The present challenge is, however, to Judge McMullen's order, since he heard the application as if it were a fresh hearing before him and he also heard evidence from the parties. He is of course a very experienced judge of the Appeal Tribunal and is extremely familiar with the practice and procedure relating to time extensions and with the reported authorities relevant to the exercise of this discretionary jurisdiction. He referred in his judgment to the Appeal Tribunal Practice Direction of 2005, which made it clear that it is not only necessary to file the Appeal Notice in time; it must also be accompanied by the prescribed documents, absent which the Appeal Notice will not have been lodged in time. It also made clear that as from the date of such statement:

"… ignorance or misunderstanding of the requirements as to service of the documents required to make a Notice of Appeal within the 42 days will not be accepted by the Registrar as an excuse."

The Practice Direction is directed both to practitioners and litigants in person. There is not one law for professionals and a different, more lenient, one for those who by choice or necessity conduct their own case.

1. Judge McMullen recorded that Mr Harper knew that the appeal period was 42 days but that he thought it ran from 20 December 2008. He explained how, in the event, Mr Harper was taken ill on 29 December, and was in hospital until 5 January 2008, and how upon discharge he was still ill from his ordeal and did not submit a Notice of Appeal until 10 February 2009. He explained that the evidence did not prove that Ms Watson was ill before January, although he accepted that it showed she became ill in that month. He held, correctly, that the Notice of Appeal was out of time; the question was whether a discretionary extension should be allowed, which he said was a wide discretion. He did not consider that it was the law that the applicants had to show that throughout the 42-day period it was impossible for them to put the notice in. He said that time started to run against them on 21 November, although it was not until 20 December that they learnt the outcome of the review application. He held that it was no excuse for not putting a notice in "that Peninsula has sat on the judgment without telling them". Whilst that was an explanation, it was not a sufficient excuse in respect of the period down to 20 December. As for the remaining period of time, that amounted to the period between 20 December and 2 January, which comprised a mere six working days. Judge McMullen held that there was no intention to meet the deadline, because of Mr Harper's mistake as to when the deadline was. He had not properly considered the judgment booklet. He also found that Ms Watson's debilitating illness in January did not mean that she could not have appealed by 2 January. Overall, the judge refused to extend time because the failure to file in time was because a decision had been made to defer its filing until the New Year. Mr Harper's illness on 29 December did not prevent performance of the task that had to be done by 2 January that he was anyway not proposing to perform.

1. I find this a hard case. Judge McMullen was, in my view, correct in finding that the reason the notice was not filed by 2 January was because the applicants wrongly concluded that it did not have to be filed by then. Their problem in not doing what had to be done was, therefore, referable to their ignorance or carelessness, not to any supervening illness, and ignorance of the time limits is ordinarily no excuse. The case is however hard because during the period from 21 November to 20 December, comprising 30 of the crucial 42 days, they were ignorant that the Tribunal had decided against them and that time for an appeal was running. That was not their fault; but the consequence of that was that they were eventually left with a mere fraction of the time for appealing that the scheme of the rules expected them to have. It is also questionable, to my mind, whether within that remaining time they could have lodged all the necessary documents at the Appeal Tribunal, as Peninsula still had their papers. It is perhaps not wholly surprising that they concluded that they had 42 days from learning of the adverse decision although, as I have said, ignorance is not ordinarily an excuse.

1. But should this automatically be the end of the road for them? In Abdelghafar, Mummery J explained that if an explanation for the delay is offered, other factors may come into play in the exercise of discretion. In that case, even though no acceptable excuse had been put forward for the failure to comply with the time limits, time was extended because the case raised an important issue of sovereign immunity which the Appeal Court should consider. So Abdelghafar shows that the Tribunal has to look beyond the mere issue of the delay and any explanation for it. In the present case, the applicants complain that they have been visited with a ?10,000 compensation order and have not had a single hearing at which they had been able to put their case. They say that their right to a fair trial has been sidelined. This is not, therefore, a case in which there has been a full hearing on the merits but one in which there has been no hearing at all. That, say the applicants, is a just basis for an indulgent extension of time.

1. That consideration does, in my view, raise a matter of concern. It is true that the applicants have not had a hearing, although a fuller investigation of the matter may well show that they have no-one but themselves to blame for that; and I have made observations about what seems to me to have been the ill-advised choice by Mr Harper not to attend the hearing on 30 September. I do, however, have an intuitive anxiety as to whether it was enough by way of rejection of the applicants' extension application to hold against them that they made a fatal mistake on 20 December 2008 as to the time they had for appealing, in consequence of which they must be forever barred from the opportunity of a hearing at which they can challenge the default judgment obtained by Mr Hopkins.

1. For these reasons, whilst I do not propose to give permission to appeal, since I have real reservations as to whether there will ultimately ever be anything in it, I consider that there is sufficient in this permission application to justify adjourning it to the full court, on notice to the respondent, and I will direct that if permission to appeal is given, the appeal will follow immediately. To the extent that the material now before the court includes new evidence that the applicants wish to adduce in support of their application, I will also adjourn their application to do so to be heard at the same time. I will also adjourn to that hearing the application by the applicants to extend their time for filing their Appellant's Notice in this court.

Order: Application adjourned.