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Case No: A2/2009/2532

Neutral Citation Number: [2010] EWCA Civ 1152

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

EMPLOYMENT APPEAL TRIBUNAL JUDGE

UKEAT/0285/08/CEA

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 8th September 2010

Before:

LORD JUSTICE RIMER

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Between:

Holly Richmond (formerly Richmonds Solicitors) (Appellant)

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Peter Stephen Day (Respondent)

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(DAR Transcript of

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The Applicant 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 renewed application for permission to appeal is in a state of most unsatisfactory disarray. The applicant is Holly Richmond, who is a retired solicitor and was formerly a partner in a firm called Richmonds, which I understand is now dissolved. She had a partner called David Bellamy, but he appears to play no role in the story which I understand to be as follows.

1. In October 2005 Richmonds employed the respondent to this application, Peter Day, as an assistant solicitor. He was appointed "Head of Equine Law" with a view to developing an equine department for Richmonds. By April 2007 relations between him and Mrs Richmond had broken down, such that it was apparent that he would no longer comply with her instructions as his employer. In June 2007 Mr Day was dismissed for what Richmonds claimed were redundancy grounds and in July 2007 Richmonds dismissed his appeal against that dismissal.

1. On 28 August 2007 Mr Day brought proceedings in the Bristol Employment Tribunal for unfair dismissal. He claimed he had not been dismissed on redundancy grounds at all. Richmonds defended the claim without success and its outcome was that the tribunal found that Mr Day had been unfairly dismissed and, following a review of its original judgment, it adjusted the awards it had originally made to a basic award of £1,240 and a compensatory award of £5,497.19.

1. On 29 April 2008 Richmonds presented an appeal against that decision to the Employment Appeal Tribunal and the appeal was in respect of the decisions both on liability and quantum. Richmonds’ proposed appeal came before His Honour Judge Serota QC on the sift, the procedure whereby the judge of the appeal tribunal considers the proposed appeal on the papers and gives directions in relation to it. On 30 June 2008 Judge Serota directed that the appeal was to be set down for a full hearing before a judge and two members, a form of order reflecting that he recognised that the appeal raised a properly arguable case to the effect that the employment tribunal had made one or more errors of law in coming to its decision. His order also contained various standard form interlocutory directions that are usually made, although they will of course be tailored to the needs of the particular case. In this case the provisions of particular importance are those in paragraphs 6 and 7, which read as follows:

"6. The parties shall co-operate in compiling and agreeing and shall, by no later than 28 days prior to the date fixed for the hearing of the full appeal, lodge with the Employment Appeal Tribunal 4 copies of an agreed, indexed and paginated bundle of material documents for the hearing of the appeal.

1. The Appellant shall lodge with the Employment Appeal Tribunal and serve on the Respondent a Chronology and the parties shall exchange and lodge with the Employment Appeal Tribunal skeleton arguments for the purposes of this appeal, not less than [] days before the date fixed for the hearing of the full appeal."

1. I comment that the number of days in paragraph 7 is not in fact blank in the copy order that is before me, but the number is obscured by a black line and so I cannot read it. I suspect that the number is 14 but it does not matter. That order was sealed by the tribunal on 1 July 2008.

1. That order having been made, the clock then fast forwards to 3 August 2009. On that day there was an application in the still pending appeal before His Honour Judge Ansell at a hearing at which only Mr Matthew Bradley, counsel for Mr Day, was present. It does not appear that any judgment was delivered before Judge Ansell made the order he did, certainly none has been produced. The order recites, first, that Richmonds, the appellant, had, by a letter of the same day (that is, 3 August 2009), sought an adjournment of the appeal, which the second recital of the order discloses was due to be heard on 18 August 2009. No doubt that letter had been sent by fax. The order refused the requested adjournment. It then recited the failure of the appellant to provide four copies of an agreed bundle in accordance with paragraph 6 of the earlier order sealed on 1 July 2008, which might be said to be an arguably odd recital bearing in mind that paragraph 6 imposed that obligation on both parties, not just on the appellant. The inference, however, is that the appellant had refused or failed to co-operate in the preparation and lodging of the bundles. The order recited next that the appellant was neither present nor represented. Having then recorded that the tribunal had heard Mr Bradley for the respondent, it read:

"IT IS ORDERED THAT that unless the aforementioned bundle is lodged by the appellant with the Employment Appeal Tribunal by 4.00pm on Friday the 7th day of August 2009 the appeal be dismissed without further order."

1. The order then made an appropriate variation to paragraph 7 of the earlier order of 30 June 2008, by directing compliance with it to be by 12 August 2009, a variation that assumed that the appellant would in the meantime have satisfied the obligation with regard to filing the bundles. It then provided that any application for leave to appeal against the order had to be made to the Court of Appeal within 21 days of the seal date of the order, which was, as one might expect, also 3 August 2009.

1. Perhaps predictably, the “unless order” was not complied with; that is to say the appellant, Richmonds, did not provide the bundles as required by the order of 3 August, and on 11 August 2009 Judge Ansell made an order dismissing the appeal. Likewise, no judgment appears to have been delivered on that occasion either and I suspect that that order was probably made simply on the papers. I doubt if there was any hearing.

1. The appellant's notice to this court was filed by the applicant in her own name, that is Holly Richmond, not in the name of Richmonds, the appellant before the appeal tribunal. It was filed on 24 November 2009. It seeks to appeal against the order of 3 August 2009 and so was, according to my calculation, 92 days out of time. It necessarily seeks an extension of time for appealing, relying on an assertion that Mrs Richmond has suffered severe health problems for many months following her retirement as a solicitor on health grounds in 2008. The grounds of appeal refer to a medical report which was not included with the papers; and. Mrs Richmond, who appears today to renew her permission application, has not produced it for the court, saying that she has left her medical file at home. Accordingly, I have no medical evidence bearing out what Mrs Richmond has told me about her state of health.

1. The grounds of appeal are not, with respect, illuminating. Paragraph 1 asserts that Mrs Richmond was obliged to close the firm of Richmonds on 30 September 2008 on health grounds. It explains that she had suffered a road accident in June 2005, which she says left her unable to apply her brain to anything complicated. She did not have the funds to instruct solicitors to conduct Richmonds' appeal to the appeal tribunal and was anyway not sufficiently mentally fit to instruct a solicitor. Paragraph 2 asserts in generalised terms that she "was not properly heard or represented on the previous occasions and an adjournment for time to prepare was refused". She criticises the appeal tribunal for dealing with her in what she regarded as an oppressive and unreasonable manner, as if she were still in business and in sound good health, although it is fair to say that in her oral address to me this morning she has been complimentary about the way that Mr Anya of the appeal tribunal dealt with her.

1. In paragraph 3 she accuses the appeal tribunal of breaching her entitlement to a fair hearing, although to what she is there referring is obscure. In paragraph 4 she asks for a rehearing of the employment case before the Bristol tribunal; alternatively leave to appeal against the order of 3 August 2009, including leave to appeal out of time. She says she was "not aware of the time issue until I received a typed and sealed order", although she does not say when that was. She further asks in the alternative for a stay of proceedings pending her recovery. I am not sure to what proceedings that refers, although it may refer to the fact that Mr Day is threatening to enforce a charging order with a view to recovering the sums awarded to him by the employment tribunal.

1. Those grounds reflect on their face the work of someone who has not even a remote grip of the issues with which she is faced. There is, for example, no explanation from Mrs Richmond in the papers as to whether she had any forewarning that the appeal tribunal was to be asked to make the “unless order” that it did or whether its terms were conveyed to her in time for her to comply with it. She has produced no skeleton argument in support of her appeal. There is no reference to the appeal tribunal's jurisdiction to make orders of the sort that it made on 3 August, although I presume from my own research that it is rule 26 of the Employment Appeal Tribunal Rules 1993. There is no reference to whether there is any jurisdiction in the appeal tribunal to obtain relief from the sanction imposed by an “unless order” of the nature referred to. There is no indication as to whether Mrs Richmond ever considered applying to have the order varied or discharged on the ground that it was, on the face of it, made ex parte and perhaps without notice to her.

1. Accordingly, it is no surprise to me that when the papers came before Mummery LJ on the papers for him to consider whether to grant permission to appeal, he declined to give permission. He said that an appeal would have no real prospect of success: an appeal from the Employment Appeal Tribunal is confined to questions of law and no reasonably arguable point of law is identified in the grounds of appeal. That is, if I may respectfully say so, exactly my assessment of the case as well. Accordingly, I commenced the hearing of this application with no idea of what Mrs Richmond's case was, and I have spent probably 40 minutes or so with her trying to ascertain the history of the case, what her grounds of appeal against the order of 3 August are and why she delayed so long in seeking to appeal against it.

1. I am not sure I am very much further forward, but I am grateful to Mrs Richmond for being as helpful as I am sure she was able to be in trying to fill in the background, about which she plainly only has a sketchy recollection. She emphasises that the consequence of the car accident to which I have referred has had a severe effect upon her mental health. She suffers from fibrosa myalgia, which she describes, no doubt in rather lay terms, as causing her brain not to work as properly as it should, and asserts that she was suffering from this (and I do not question the good faith of her assertion) throughout the time that her appeal in the appeal tribunal was pending. In short, she asserts that this put her in the greatest of difficulty in handling the case. She says she was not fit either to handle it herself or to instruct someone else to handle it for her.

1. She has provided me in the course of her address with two bundles and various items of correspondence but has provided nothing in the way of documentation relating to what was happening in the appeal tribunal in the latter part of July and early August 2009, by which I mean the events leading up to and surrounding the making of the order of 3 August. She has, however, frankly explained that background to me as she recalls it. It is essentially to the effect that she recalls that towards the end of July she was told of her shortcoming with regard to the filing of the bundle by, I think, Mr Anya at the Employment Appeal Tribunal, who telephoned her, and it is not surprising that he did so because by the end of July the time for compliance with paragraph 6 of Judge Serota's order of 30 June 2008 had passed. The appeal was due to be heard on 18 August, the bundle was supposed to be filed by the parties by no later than 28 days before then, and so, by towards the end of July, a material part of that 28 days had elapsed with no bundle having been lodged. It is not therefore surprising that Mr Anya contacted Mrs Richmond to remind her that she needed to comply with that order, and it is a reasonable inference that the respondent's solicitors, who appear to have been taking this appeal extremely seriously (they were Davies Arnold Cooper), would have been complaining to the appeal tribunal that they could not themselves file the bundle without Mrs Richmond's cooperation. She, by inference, had all the crucial documents which required to be filed.

1. So there was that warning, or reminder, to Mrs Richmond towards the end of July; and we know from the face of the order of 3 August that on that day, as I have related, Mrs Richmond sent a letter to the appeal tribunal asking for an adjournment. She explained to me that it would have referred to the medical and mental health difficulties that I have explained and would have advanced that as the reason why she wanted the adjournment.

1. It is unsatisfactory that she has no copy of that letter and so I do not know what it said, but I have been told what it probably said and it is in no way surprising that it would have said what I have related. I have also related that Judge Ansell refused the adjournment application. He had plainly considered the letter and had apparently come to a conclusion as a matter of discretion that an adjournment was not justified. That being so, and given the imminence of the appeal hearing on 18 August, it is in no manner surprising that he made the “unless order” that he did, imposing a relatively short time for compliance with the outstanding provisions of paragraph 6 of the order of 30 June 2008 and giving Mrs Richmond until 4 pm on Friday 7 August to file the bundle, failing which the appeal was to be dismissed without further order.

1. What happened thereafter is also not explained in the papers, but Mrs Richmond has filled in the blanks in her representations to me and she has a clear recollection, she says, that Mr Anya of the appeal tribunal rang her at 7 pm on, she believes, the day before the last day for compliance with the order, which would be Thursday 6 August, explaining to her that she had to file the bundle by the following day or else attend before the appeal tribunal to explain why she had not. Although I have said that Mrs Richmond believes that she only received a copy of the 3 August order much later, I did understand her to be disposed to agree with me that Mr Anya was ringing her at that very much eleventh hour because he was surprised that she had not already co-operated with an earlier request from him.

1. I also understood her to agree that it was very probable that the order of 3 August had been sent to her immediately after it had been sealed, so that she would have received it, if sent by post, on the 4 or 5 August, or it may even have been faxed to her, but either way she was disposed to accept that she had been given some earlier warning from the appeal tribunal that she had to produce the bundle by Friday 4 August. She also candidly accepted that, although Mr Anya did not actually tell her that the action would be struck out the following day if she did not comply with the order of 3 August, she did understand that that would be the consequence. She made it plain that she would have been aware that, if she did not produce the bundle or attend to provide an explanation as to why she had not done so, the appeal would be struck out. In the event, she did not produce a bundle, she did not attend the appeal tribunal to explain why she had not, she did not apply to the tribunal to seek to vary or discharge the order of 3 August, nor did she make any application to ask to be relieved of the sanction opposed by that order. So far as I can see, she did nothing, not only during the time for appealing against the order that Judge Ansell had made, but for 92 days thereafter, as I have explained.

1. Against that background, is there any reasonable ground for appealing against Judge Ansell's order? At the forefront of Mrs Richmond’s submissions is the case that she was simply not equal to handling this litigation because of the illness from which she was suffering as a consequence of the motorcar accident in which she had been involved. The difficulty which I have with that argument being placed, as it were, at the heart of her application is that I have no doubt -- and indeed I think she accepts -- that she made plain to the appeal tribunal the problems that she was suffering because of that illness and did so in her letter of 3 August to the tribunal asking for an adjournment.

1. I have no document before me by which Mrs Richmond ever explained her problems to the appeal tribunal, but we know that she was quite capable of writing to the tribunal, as the order of 3 August shows, and I have no doubt that she would then have made plain to the tribunal the problems that she asserted she was facing in dealing with the appeal. The hard fact, however, is that Judge Ansell was not impressed that the explanation that Mrs Richmond provided to the court on 3 August was one that justified any adjournment of the appeal. That, it seems to me, must be assumed to be a judgment he was entitled to form on the material before the court because Mrs Richmond, as the proposing appellant, has not produced anything which suggests that he was not entitled to form that view.

1. Accordingly, I see no basis for any criticism of Judge Ansell in declining the adjournment of the appeal hearing for which Mrs Richmond applied; and, once Judge Ansell had arrived at that conclusion, the making of the “unless order” which he then proceeded to make was almost inevitable. If the appeal was to go ahead it was essential that Mrs Richmond should provide the documents, because without the documents the appeal could not go ahead; and so it is no surprise that he made what, in the circumstances, I would regard as an entirely conventional order. It was of course important, from the respondent's point of view, that there should be some finality about the position because, unless the judge had imposed the sanction which he did in the “unless” part of the order, the respondent would presumably have had to continue preparing for an appeal hearing which might or might not take place.

1. I can therefore see nothing wrong with the order that was made. The order having been made, Mrs Richmond was given notice of it, as I think she accepts, and yet she took no steps to comply with it. She says that she was unable to do that, but her claimed inability in that respect must be the same inability which was at the heart of her adjournment request which was refused. To cap it all, insofar as she seeks to challenge the order of 3 August, she only got around to presenting a notice of appeal to this court 92 days late, which is some three months. By any standards that is an exceptional delay and there is no material before the court at all to explain it. Of course it is sought to be explained by Mrs Richmond by the mental difficulties from which she claims she has been suffering from for some considerable time. But that explanation is not supported by any medical evidence to the effect that she was incapable of dealing with this matter any earlier; and that, one might think, was essential to an application for an extension of time of this quite extraordinary order.

1. I have accordingly come to the conclusion that, first of all, no case is made out for an extension of time for appealing; and, secondly and in any event, no arguable case is made out for the proposition that the order that Judge Ansell made on 3 August 2009 was an order that was not properly made. If there was no error of law on Judge Ansell's part in making that order -- and I am not satisfied that it is arguable that there was -- then there is, as Mummery LJ explained very much more succinctly than I have, no basis for an appeal to this court.

1. I reach this conclusion with a degree of unhappiness because I have much sympathy for Mrs Richmond in the predicament in which she plainly finds herself, but I nevertheless have to deal with this application in accordance with the principles by which this court is governed; and I have come to the conclusion that there is no basis here for granting either an extension of time or permission to appeal. Accordingly, I refuse to extend Mrs Richmond's time for appealing and I refuse permission to appeal.

Order: Application refused