The claimant made a number of claims against the respondent. In the course of her evidence she admitted to forging a letter and a statement from a potential witness. The ET determined there could be no fair trial and struck out her claim. The claimant presented a Notice of Appeal on day 42 with the relevant documents except for the ET judgment. She hand delivered the judgment 7 days later but the Notice of Appeal was rejected, not because she had failed to include the judgment but because she had lodged her appeal on the very last day and thus left herself with no time to correct errors or omissions. She gave no explanation as to why the appeal was left so late. The claimant appealed.

The EAT rejected the appeal. The claimant did not truthfully explain her error in failing to submit her complete Notice of Appeal in time.  The case had no merit whatsoever and given that the claimant accepted she was relentless in her pursuit of the respondent, costs were awarded against her.

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Appeal No. UKEATPA/0044/12/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 22 June 2012

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MRS O M LISTER (APPELLANT)

(1) AMERICAN INSTITUTE FOR FOREIGN STUDY (UK) LTD; (2) SIR CYRIL TAYLOR(RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MRS O M LISTER (The Appellant in Person)

For the Respondents
MR D BROOK (of Counsel)

Instructed by:
Penningtons Solicitors LLP
Abacus House
33 Gutter Lane
London
EC2V 8AR

PRACTICE AND PROCEDURE – Time for appealing

The Claimant did not truthfully explain her error in failing to submit her complete Notice of Appeal in time. Given the Claimant accepts she is relentless in her pursuit of the Respondents, costs were awarded.

1. This is an appeal from the decision of the Registrar given on 13 March 2012 in which she refused to exercise discretion to extend time by seven days for the registration of a Notice of Appeal. I will refer to the parties as the Claimant, Mrs Lister, and the Respondents, the American Institute for Foreign Study (UK) Ltd and Sir Cyril Taylor.

1. The appeal itself is an appeal against reasons of an Employment Tribunal chaired by Employment Judge Lewzey, sitting at London Central, sent with Reasons on 24 November 2011. Preceding it had been the Judgment, sent on 15 September 2011. The Judgment was to strike out the claim and an order that the Claimant pay the Respondents’ costs. The Claimant represented herself, and the Respondents were represented by Mr David Brook of counsel, who both appear today.

1. The Claimant made a number of claims against the Respondents, which I need not go into. In the course of her evidence she admitted forging a letter and a statement from a potential witness. The Employment Tribunal determined that there could be no fair trial. The Tribunal acknowledged that taking the step to strike out the case was one of the utmost gravity, but then so were the falsehoods that the Claimant had perpetrated, and so the matter could not go further. There was some background as to previous cases involving the Claimant, which the Tribunal paid no attention to, but they have now been put before me, including the Claimant’s conviction in the 1980s for forgery, for which a 12 month sentence was imposed. She maintains she is innocent, but there was no appeal. The Respondents contended that the claims made by the Claimant were unfounded: there and here it is contended that the Claimant is a fantasist and no attention should be given to her complaints.

1. The strike out was followed by an application for a review, and that was dealt with on the papers by Employment Judge Lewzey in a Judgment sent to the parties on 25 January 2012. It is fair to say that there had been some confusion as to the sending of the written Reasons to the Claimant, but, according to the account given by Employment Judge Lewzey from a review of the contemporaneous documents, the Judgment and Reasons were in the hands of the Claimant by 29 November 2011. The Claimant obviously was dissatisfied. She had representation at the time, for she was variously represented by Mr Joe Sykes, a consultant, and by Mr Andrew Granville Stafford of counsel, and she gave him the documents. She also alleged that Mr Sykes had held onto documents.

1. The Claimant presented a Notice of Appeal with the relevant documents except for the Judgment. She did this by hand at the EAT on 5 January 2012 – that is, day 42 – but she was told by the EAT in writing on 10 January 2012 that her appeal was deficient for it lacked the Judgment, and on 12 January 2012 the Claimant called at the EAT and handed in the Judgment; she received a receipt for that, and within an hour the Notice of Appeal was validated. The Registrar found that the Judgment was missing and therefore the appeal was not properly instituted until 12 January 2012, seven days out of time. The Registrar considered the relevant authorities for the exercise of discretion, and she said this:

“The Appellant claims that she had given a copy of the judgment to counsel. She did not keep a copy for herself. Therefore she did not have it to lodge when she lodged her appeal. She was sent details of the Judgment booklet and she should have referred to its clear advice. She should have lodged a copy of the judgment with her appeal.

The generous period of six weeks is given to enable appellants to comply with all the requirements because it is appreciated that some may be at a disadvantage. Lord Justice Keane stated in Wilkinson v Reid Wines 1992 Ltd [2007] EWCA Civ 964 ‘Any would be appellant to the EAT is expected to act with dispatch and not allow weeks to pass before he gets his act together’. The Appellant acts for herself but so do many litigants do so [sic] in this court and they manage to file all the necessary documents in good time. Whatever documents Mr Sykes may have, a copy of the judgment is readily available from the Employment Tribunal. The mistake could have been avoided if the Appellant had taken the advice in the Judgment booklet and obtained all the necessary documents and filed her appeal in good time. Although she claims that her documents were with counsel I infer that the more likely explanation is that when she put her appeal together (whenever she did so) she overlooked the judgment. She is not out of time because she omitted the judgment but because she lodged her appeal on the very least day and thus left herself with no time to correct errors or omissions. She gives no explanation as to why the appeal was left so late.”

1. The relevant provisions of law and practice are set out in my Judgment in Muschett v London Borough of Hounslow [2009] ICR 424. Since then the Court of Appeal has decided Jurkowska v Hlmad Ltd [2008] ICR 841. In Miller v Lambeth Primary Care Trust [2011] EWCA Civ 722 the Court of Appeal approved my Judgment in this court and recognised the force of the problem that I had there described of so many would be appellants leaving their appeal until one minute to midnight and something going wrong, and having therefore to face the fact that their appeal was out of time. It is a problem to have to deal, as we do today, with mistakes, errors and carelessness of would be appellants, particularly those who leave it to the very last minute. Because of the good offices of the case managers in this court, often a deficient Notice of Appeal can be rescued sufficiently far before the deadline, but working at one minute to midnight it is not possible to do that, and that was the case here. The Practice Direction and the Practice Statement are clear: all documents have to be submitted with the Notice of Appeal. What was missing here was the Judgment. In Zinda v Barn Elms [2011] EWCA Civ 690 **the Court of Appeal expressly approved my approach and that of other judges in this court to the practice and the law Rimer LJ saying:

“45. There is no need for extensive reference to the reported authorities relating to extensions of time for filing notices of appeal in the appeal tribunal. The essence of the principles is, I consider, sufficiently summarised in paragraphs [3] to [7] of my judgment in Jurkowska v. Hlmad Limited [2008] EWCA Civ 231 (to which Judge McMullen referred). That shows that the time limits are expected to be observed and that the rules are the same for those acting in person as for those professionally represented. The rules, said Mummery J (as he then was) in United Arab Emirates v. Abdelghafar [1995] IRLR 243, paragraph [27], 'will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down by the Rules.' Acceptable excuses do not include ignorance of the time limits; or oversights of the passing of the time limit, for example by a solicitor under pressure of work. Whilst the merits of the appeal may be relevant, they are 'usually of little weight [since it] is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal' (Abdelghafar, paragraph [29]).”**

1. Mrs Lister gave evidence on oath before me upon which she was cross examined. I find her evidence wholly incredible. It is not just confused; in my view, it is attempting to mislead, because she cites a range of different reasons for what is obviously an error; that is, her wrong address to which the documents were sent. This cannot be relevant, because the Tribunal itself corrected its address, and by three or four days after the Tribunal’s Reasons were sent the Claimant was in possession of both the Judgment and the Reasons. I do not believe her when she says the Judgment was not included with the original substantial pack, as she put it, of documents that came with the Reasons; they included the Judgment booklet, and, although the Judgment had been sent to her in advance, it seems to me that the Judgment was included in that. In any event, her accounts of this time are wholly inconsistent in writing and orally, and I find that by 29 November she did have all of the documents – in so far as it is relevant, she had the Judgment – in order to enable her to submit an appeal. She was also having conferences with counsel and had made a decision to appeal.

1. She has shown me today a document called a finished draft of a Notice of Appeal that she says she lodged at the old EAT building, which we vacated on 9 December 2011. She has gone to pains today to talk to one of the officers here whom she says she spoke to, but she does not give any particular date for this. She is careful to extract receipts for documents that she lodges; she has shown me two. What she asserts is that, independently of anything, she submitted the Judgment; I find that, frankly, unbelievable. There is no point in submitting an eight line Judgment to this court and expecting that to generate a set of proceedings for an appeal. Given how she presents today, I am certain that if she put a document into the EAT, she would have got the document called “Document receipt” for documents delivered by hand. She is either attempting to mislead me or she is simply mistaken and confused. In my judgment, it is the former.

1. None of these documents relates to a period prior to 5 January. I hold that on 5 January she did present the relevant documents; what is described as a finished draft became the Notice of Appeal, and that is what was submitted on day 42 of the period. She had ample time, notwithstanding the confusion about her address, and she was in the hands of counsel. She was able to make sure that all the documents arrived except the Judgment. I do not accept her explanation that she did not understand the difference between the Judgment and the Reasons; she plainly did. The documents speak for themselves; they were accompanied by a letter form the Employment Tribunal and a booklet, and she was receiving advice from counsel.

1. The fact that a document including the Reasons was apparently sent by Sir Cyril Taylor and given to her is neither here nor there, for she had the relevant documents. There is a good deal of bad blood between them, but that is not relevant to my decision today. Having heard her evidence, I disbelieve her. The simple question that she needed to answer was why she had failed to put the Judgment in. Even now she does not recognise that it is a simple answer. In my view, it was due to a simple error. This is a harsh and unforgiving jurisdiction. The fact that the Claimant at the time was representing herself, having previously consulted counsel, does not excuse her. She is an intelligent person who has been able to put the relevant documents to the Appeal Tribunal; it was a simple mistake, but she does not admit that.

1. One point that she makes is that she was getting documents from the EAT at the wrong address. This is mystifying to me, but she is right. On 12 April 2012 is a letter to her setting up this hearing, and it is sent from the old address, Audit House. The same content is sent to solicitors for the Respondents giving the present address, Fleetbank House. I will direct that therefore all documents bearing the old address be expunged, for it can only create confusion; but it has nothing to do with this case, except in so far as the Claimant asserts that she had communication with the old address. She did, but it is only this document; there is nothing else, and in my judgment she is simply wrong about handing documents to the EAT at any stage prior to 5 January.

1. That would be enough to dispose of the case, but Mr Brook invites me to make findings in relation to the merits of the case itself. This is an exceptional jurisdiction, but it is available under the holding of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 that where a case has no merit at all there is no purpose in breathing life into it by allowing an enlargement of time. Mr Brook is correct; this case has no merit whatsoever. Given the finding that the Claimant admitted forging evidence before the Employment Tribunal and a fair trial was not possible, there is no possibility of an EAT division finding in the Claimant’s favour. The Tribunal had in mind the unusual jurisdiction of a strike out but was correct, in the light of the Claimant’s lack of credibility and, as the Tribunal put it, “her own contumelious conduct”, to hold that the Respondent should not be vexed further with her baseless allegations and her manipulation of the administration of justice; and so the Tribunal, in my judgment, correctly applied its powers under rule 18(7), having acknowledged the authorities Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 and Blockbuster Entertainment Ltd v James [2004] IRLR 140. It is proper to hold that the case has no merit whatsoever and, as a part of the exercise of discretion, I have no difficulty in deciding that this case should go no further.

1. The appeal against the Registrar’s order is dismissed. The Notice of Appeal was out of time.

1. An application has been made by the Respondents (effectively, this is Sir Cyril Taylor) for the costs of today’s hearing. There is no Schedule; it is put at about £4,000. The first issue is whether the appeal has been misconceived or the Claimant’s conduct has been unreasonable or is vexatious. In my judgment, this appeal was both misconceived and unreasonably pursued. The Claimant did not tell me the truth, she had no basis on which to challenge the Registrar’s Judgment, she put her case to the Registrar, the Registrar comprehensively found against it, she has failed before me and tried to mislead the court. It is quite proper for an award of costs to be made in respect of today’s proceedings both under the heading of it being misconceived and it being unreasonable in its conduct.

1. In those circumstances, I will make an order under rule 34 for the costs of today. I myself consider £4,000 to be an extraordinary figure for today. I accept that the Respondents prepared the bundle. I accept – in fact, Mrs Lister has herself has told me – the Claimant is relentless, and therefore this case required a good deal of care and preparation; so, the figure will have to be assessed in detail.