Case No. A2/2013/2918

Neutral Citation Number: [2015] EWCA Civ 857

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HHJ PETER CLARKE)

Royal Courts of Justice

Strand

London, WC2

Date: Tuesday, 7th July 2015

B E F O R E:

LORD JUSTICE MOORE BICK

LORD JUSTICE McCOMBE

MS DORCAS KAHIGA (Claimant/Appellant)

v

LONDON BOROUGH OF BARNET  (Defendant/Respondent)

(Digital Audio Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

The Claimant appeared in Person

Mr J Wynne (instructed by William Sturges & Co Solicitors) appeared on behalf of the Respondent

1. LORD JUSTICE McCOMBE: In this judgment, which involves procedural decisions of the Employment Tribunal and the Employment Appeal Tribunal, I shall call the former "the ET" and the latter "the EAT".

1. The present appeal is brought with permission given by Gloster LJ on 15th July 2014 from the order of the EAT in the presence of His Honour Judge Peter Clarke of 18th September 2013, by which the EAT dismissed appeals brought by the present appellant, Ms Dorceas Kahiga, whom I call "the appellant" from orders of the Registrar of the EAT of 17th December 2012 and 18th July 2013.

1. By the two orders of 17th December 2012 the Registrar dismissed applications by the appellant for extensions of time in which to enter notices of appeal from decisions of the ET at Watford, made on 17th August and 27th September 2011 respectively.

1. The first of those last mentioned orders, that of 17th August 2011, dismissed the appellant's claims against the respondent on their merits, the respondent being the London Borough of Barnet, and the claims being for unfair dismissal and discrimination. The second of those mentioned orders, that of 27th September 2011, had refused an application for review of the first order, the application being out of time.

1. By an order of 18th July 2013 the Registrar refused permission to enter a review of her own orders on 17th December 2012, which I have endeavoured to describe, and of 14th March 2013. It will be appreciated that the decisions against which these appeals are brought have involved a number of applications to the EAT in which the Registrar had to consider a complex procedural history.

1. The appellant had been employed by the respondent as a support worker in its adult Social Services Department between October 2003 and July 2010. It appears that she suffered an accident at work in May 2007 and as a result she was away from work on sickness grounds from November 2008 until the effective termination of her employment in July 2010. The dispute between the parties, in its substance, was as to the fairness of her dismissal and as to alleged disability discrimination.

1. The hearing of that claim had been fixed before the ET for three days on 17th to 19th August 2011 (inclusive). As appears from correspondence in the bundle which we have seen, between the respondent's solicitors and the ET, in the period until 4th August 2011, the appellant had been represented by solicitors but those solicitors had ceased to act for her at some time around that stage of the proceedings. The respondent's solicitors state in those letters that they had been unable to contact the appellant. By a letter of 4th August 2011 to the ET, copied to the appellant, the respondent indicated its intention to apply to strike out the proceedings. By a letter 15th August 2011 the ET wrote to the appellant informing her that the respondent's "strike out" application would be heard at the outset of the hearing already fixed for 17th August.

1. In fact the appellant did not attend the hearing on 17th August and, rather than dealing with the matter by way of strike out, the Tribunal dismissed the claim pursuant to rule 27(5) of the schedule annexed to Employment Tribunal (Constitution and Procedure) Rules 2004.

1. By letter dated 18th August 2011 the appellant stated that she had not received any copy letter of 4th August and had received the letter from the ET of 15th August 2011 only on 18th August. She requested the ET should not strike out her claim. By that stage of course, on the previous day, the claim had already been dismissed, for the reasons I have endeavoured to outline.

1. By letter of 20th September 2011 new solicitors for the appellant wrote to the ET asking for a review of the decision taken on 17th August 2011 which had dismissed the appellant's claim. On 27th September 2011 the application for review was rejected as being, as it was, out of time. By a fax of 11th October 2011, sent in error to the ET at Watford rather than the EAT itself, the same solicitors also purported to appeal to the EAT against the decision to dismiss the substantive proceedings.

1. For reasons that were not fully explained except, briefly in oral argument by Mrs Kahiga this morning, it appears that no further steps were taken by the appellant or anyone on her behalf to progress, or to enquire as to the status of, her proposed appeal. No appeal had been launched at that stage against the rejection of the application for review which had occurred in September 2011. Mrs Kahiga tells us this morning that the solicitors who had previously acted briefly for her in August and September 2011 had gone off the scene in about November 2011, either because there was some problem in the firm or other reasons. Be that as it may, nothing then occurred until, by letter of 2nd February 2012, to which Mrs Kahiga has again referred in argument this morning, addressed to "Employment Tribunals" at 58 Victoria Embankment, London, the appellant referred to a telephone conversation of that afternoon, in which it appears she enquired about her case. It seems clear she was informed that she would have to submit a further appeal application to the Tribunal, as no notice of course had been lodged with the Employment Appeal Tribunal by that date.

1. After a defective attempt on 8th February 2012 to file such an appeal against both dismissal decision and the decision rejecting review application, two things happened: the defect in respect of the appeal against the latter decision was corrected on 19th March 2012, and by that time any appeal against that decision of 27th September 2011 was 125 days out of time, the last day to appeal being the 8th November 2011. The defect in respect of the proposed appeal against the dismissal of the decision of 17th August 2011 was not corrected until 29th May 2012. By that date that appeal was even longer out of time (i.e. by 230 days).

1. In each case the appellant was invited to file an application for the necessary extensions of time with supporting grounds. By letters of 31st July 2012 (two in number) the appellant wrote to the EAT outlining again the attempts made to appeal against and/or to review the decisions of August and September 2011 to which I have referred. By letter of 22nd October 2012, after further invitations to the appellant from the EAT to lodge final submissions in support of their applications for the extensions of time sought, the appellant sent a further short letter of 22nd October 2012, criticising the respondent's solicitors in a way that, in my judgment, took the matter very little further in advance.

1. The applications for the extensions of time went before the Registrar who dismissed them by the orders of 17th December 2012, to which I have referred. The decisions were supported in each case by written reasons referring to a number of reported causes including the leading case of United Arab Emirates v Abdelghafar and Another [1995] ICR 65 and Jurkowska v Hlmad Ltd [2008] EWCA Civ 231. The Registrar decided that the material submitted did not constitute exceptional reasons why appeals could not have been presented within the time limits prescribed.

1. It is worth mentioning the grounds upon which one of those decisions was taken. It does not really matter which because they are essentially dealing with the same question and in the same form. The Registrar said this at page 179 of the bundle which is one of the decisions of 17th December where the judge say this:

"The appellant has had many representative. However she was sent the judgment letter on the 31st August 2011 which sets out the time limit and address to which appeals should be sent (copy attached) which also informs of the Judgment booklet. Nothing prevented her and her new solicitors from reading this letter. She, or her new solicitors, could have contacted the employment tribunal and obtained a copy of the Judgment booklet or download a copy from the internet. The Judgment booklet also gives the address of the EAT. There is other help available on the internet. Merely putting 'appeal from the employment tribunal' into the GOOGLE search engine will bring up links to the EAT web pages with their comprehensive advice as the first result. It is the appellant's duty to find out where to deliver her appeal. If her representatives made mistake that is not a matter for this court DEDMAN v BRITISH BUILDING and ENGINEERING APPLIANCES Ltd (1974) 1 All ER 520."

The Registrar then refers to Jurkowska v HLMAD Ltd.

1. On 31st December 2012, after those two decisions, four days late, the appellant sought to appeal against the two orders that had been made on 17th of that month. She was informed by the EAT on 9th January 2013 that this appeal too was outside the prescribed time limits and was told any application for an extension had to be submitted within 7 days. By letter of 14th January 2013, received by the EAT on 16th January 2013, the appellant stated she had been undergoing medical treatment and was in receipt of medication that made her drowsy. She said she could not get family assistance owing to their commitments and Christmas preparations. A general practitioner's letter of 1st February 2013 was provided under cover of a letter from the appellant of 4th February.

1. By an order of 13th March 2013 the Registrar refused the extension of time sought. In short, the Registrar stated her reasons as follows:

"The appellant has failed to appeal the Registrar's order ... within 5 working days. She applies for an extension of time. She was given information as to how to appeal the Registrar's order. She was clearly informed by the Practice Direction, 'an interim appeal lies from the Registrar's decision to a judge. Such an appeal must be notified to the EAT within 5 days of the date when the Registrar's decision was sent to the parties (see para 4.3)'.

The Registrar's order in its ultimate paragraph informed her of the relevant paragraphs of the Practice Direction relating to an appeal of the Registrar's Order. The Registrar has declined to extend time and she must now explain why she did not appeal her order within the time limit. She has told me that she suffers from low back pain for which she takes medication. She had a lot of doctor's appointments over the relevant periods. This is most unfortunate. However an appeal from the Registrar's Order is a simple matter, merely requiring notification in writing. She could have sought assistance. I am asked to accept that she was not well enough by the 27th December 2012 to lodge an appeal yet she was well enough on the 31st December when her letter was received. I cannot accept that she was incapable of the simple letter she eventually sent."

1. By letters of 21st April and 5th May 2013 the appellant, again out of time, sought to appeal once more against the decisions of 17th December 2012 and the most recent decision of 13th March, relying more extensively this time upon medical background following her injury at work and more recent treatment and medication. The Registrar again refused the extensions of time sought and said this (at the beginning of 212 of our bundle):

"Unfortunately she has supplied no reason for time to be extended. She refers to medical history that she wished me to take account of when considering the order of 14th March 2013 and I did take this into account. She made no mention of any medical history in her initial application to extend time in which to lodge an appeal and therefore the respondent has not responded to this point. It is a matter for the appellant what reasons she wished to put forward to justify an extension of time. In fact the medical evidence was on the file and was read by me. It would not have altered the decision. There is no reason to extend time for a review."

At page 215, on the same date, she says much the same thing, which it is not necessary to repeat but which we have obviously read in the course of preparation of this case.

1. Nothing daunted, by e mail of 23rd July the appellant sought to appeal to the judge against the Registrar's two most recent decisions. It was that appeal, this time brought within the prescribed time, which came before Judge Clarke on 18th September 2013. At that hearing the appellant attended in person and the respondent was represented its solicitor. The judge briefly summarised some of the procedural history the judge sought to relate so far, referring in particular to the initial failure by the solicitors to lodge the proposed appeal with the EAT. Having done so the judge said this at page 18 of the bundle:

"Ms Kahiga tells me that she has done her best under some difficulty as a result of the disability under which she suffers resulting from her accident at work in May 2007. However, the real problem is that having placed the matter in the hands of solicitors, Joseph & Co, those solicitors then failed to lodge a Notice of Appeal at the EAT in time. Moreover subsequent applications to this Tribunal have been out of time. I am afraid there is no good excuse for the original delay in lodging an appeal, nor indeed can I see any good excuse for the subsequent failures to comply with the time limits.

In the circumstances, I can see no grounds for interfering with the Registrar's decision, and accordingly these appeals fail and are dismissed."

Against that decision the appellant then appealed to this court. Her application for permission was initially refused by Christopher Clarke LJ on 24th April 2014 but was on a renewed application, as I have already mentioned, by Gloster LJ on 15th July 2014.

On the present appeal we have been helpfully given a skeleton argument presented by counsel who at one stage earlier this year assisted Mrs Kahiga in the presentation of her appeal. Mrs Kahiga has not dwelled extensively on the arguments there submitted. She has concentrated on her disability owing to her injury at work and her inability to focus upon the necessary procedural requirements in the Tribunals and explains the delays that have occurred for that sole reason. However, she has said to us that she wishes us to take into account, as we have, the matters raised in the skeleton argument prepared on her behalf. Accordingly I propose to address those briefly.

In that skeleton argument it was first submitted that the Registrar unduly fettered exercise of her discretion by reference to case law dealing with extensions of time to appeal to the Employment Appeal Tribunal rather than focusing upon internal reviews within the Employment Appeal Tribunal itself. The relevant point is made more fully in paragraphs 17B and C of the appellant's skeleton argument which is not necessary to quote but we have that reference. We have considered those points.

The second point made in the skeleton argument was that even if the Registrar, and thus the judge, applied the correct principles of law they each erred in the exercise of their discretion in failing to give adequate weight to, first, the errors made by the appellant's former solicitors and, secondly, to the medical evidence as to her continuing ill health. I would perhaps add Ms Kahiga understandably makes the point that more emphasis should have been given to the fact that her claim on the merits was never dealt with by the ET in the light of the dismissal decision taken, not as a matter of strike out but on the papers that were before the Tribunal, on 17th August 2011.

1. Having considered those points, in my judgment, I do not consider that there is anything in them. We are presently considering the judge's decision to decline to interfere with the exercise of the Registrar's discretion when refusing extensions of time, either to appeal against the decisions of the Employment Tribunal or to extend times for reviews of her own previous decisions. It is clear that both the Registrar and the judge, both experienced in the procedures of the Tribunals, had the history of the case and the appeals well in mind.

1. It seems to me with regard to the decisions of the Registrar of the first type that are mentioned in the skeleton argument, namely applications for permission to appeal, the reported cases referred to by her in her decisions, were directly applicable. Further, with regard to the second type of decision, internal reviews within the Tribunal of previous decisions of the Registrar, the same cases and considerations are clearly applicable by analogy. Both types of decision involve the questions of when extensions of time for compliance with the rules should be granted. As Mr Wynne points out, both discretions arise under rule 37(1) of the Employment Tribunal Rules 1993.

1. It would be bizarre, in my judgment, if different considerations applied to the two situations, both involving questions of whether extensions of time should be granted. The applications may have some technical differences but are dealing with similar questions of when or whether indulgence should be granted to a litigant who has defaulted in meeting time limits.

1. The decided cases underlying the rule show that great care has been given to balancing the conflicting interests of the parties to cases before the Employment Tribunals and before the Employment Appeal Tribunal and the need to secure expeditious disposal of cases before both Tribunals. It is only right, in my judgment, that the same principles should be applied in all cases where such extensions of time are being sought. To do otherwise would be nothing but a recipe for confusion.

1. As to the appellant's second point made in the skeleton argument, which is the one amplified by Mrs Kahiga this morning in her oral argument, it is clear that we are being invited to reverse the decision of the judge refusing to interfere with the exercise of the Registrar's discretion on more than one application made to the Registrar for extensions of time. The court would only do so, to my mind, if it could discern an error of principle in the manner in which the Registrar or the judge had exercised their respective discretions. I can find no such error. Moreover, having considered the various judgments of the Registrar, and many they were over a period of time in which he must have become well familiar with the case, the Registrar was entirely correct in the decision she took on each of the applications which are the subject of the present appeal. The judge was also correct having reviewed the papers, in my view, in declining to interfere with those procedural decisions taken by his Registrar.

1. For those reasons I would dismiss this appeal.

1. LORD JUSTICE MOORE-BICK: I agree. There is nothing that I wish to add.