The applicant had initially complained of racial discrimination but the ET decided it had no jurisdiction as the claim was out of time and anyway would not have succeeded. In his appeal to the EAT, the applicant alleged bias and miscondict by the tribunal as well as complaining of the substance of the ET's decision. The EAT therefore requested an affidavit solely on the issue of the alleged bias and misconduct and set a deadline to receive the document. Some extensions to that deadline were granted with the finl deadline set as February 2009. Three days before that the EAT received a recorded delivery package from the claimant that he claims to have been his affidavit but which could not be found in the EAT offices: the claim was therefore struck out on 9 March.

In this appeal Smith LJ found that the EAT judge's factual conclusion was perverse as she had wrongly drawn adverse inferences from the claimant's failure at first to mention the missing affidavit in email communication between the claimant and the EAT after the deadline had passed, therefore paying insufficient regard to the possibility that the affidavit had been received by the EAT. She also agreed that the claimant's submission that the substantial grounds of appeal were arguable and should at least be passed to the sift process. 
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Case No: A2/2009/1371
Neutral Citation Number: [2010] EWCA Civ 29
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MRS JUSTICE COX)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 19th January 2010

Before:

LADY JUSTICE SMITH

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Between:

**RUHAZA (Appellant)

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ALEXANDER HANCOCK RECRUITMENT (Respondent)**

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(DAR Transcript of
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The Appellant appeared in person.

The Respondent did not appear and was not represented.

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Approved Judgment

Crown Copyright©

Lady Justice Smith:

1. This is a renewed application for permission to appeal the decision of Cox J, sitting in the Employment Appeal Tribunal (EAT) on 13 May 2009, when she rejected the applicant’s appeal against the automatic striking-out of his appeal to the EAT by the Deputy Registrar.

1. The factual background can be very briefly stated, as I am not concerned at this stage with the merits of Mr Ruhaza’s underlying appeal. In October 2008 the employment tribunal (ET) at Manchester gave judgment in the applicant’s claim of racial discrimination.  The ET determined that it did not have jurisdiction to hear the claim which had been brought out of time.  The tribunal also held, having heard the evidence, that Mr Ruhaza would not have succeeded on the merits in any event.

1. Mr Ruhaza sought to appeal that decision.  He lodged his Notice of Appeal in time.  The Notice of Appeal raised a large number of grounds.  Some of them alleged bias and misconduct by the tribunal, but other grounds complained of the substance of the tribunal’s decision, both as to the decision on the time issue and in respect of its view of the underlying merits.

1. In January 2009, HHJ Birtles in the EAT, ordered the applicant to provide an affidavit setting out and verifying the details of his allegations of bias or improper conduct by the tribunal.  On 5 February, the applicant sent an e-mail, which he wished the EAT to treat as his affidavit but on 9 February the Deputy Registrar directed that he should lodge an affidavit in proper form within seven days.  On 11 February, the applicant requested a further seven days in which to serve his affidavit.  The following day, that request was referred to the Deputy Registrar, who directed that, if no affidavit was received within the extra seven days the applicant had requested, the appeal should be struck out.   The affidavit was due by 19 February.

1. On 16 February the EAT received a recorded delivery envelope from Mr Ruhaza.  It is not known what that envelope contained.

1. On 9 March 2009 the Deputy Registrar, being of the view that Mr Ruhaza had not complied with the order of 12 February, directed that the appeal should be struck out.  The appellant appealed that decision.

1. Between the striking out of the appeal on 9 March and the hearing of the appeal against it on 13 May 2009, there was email correspondence between Mr Ruhaza and the EAT.  Initially, when told that this appeal had been struck out, Mr Ruhaza’s reaction was to say that, even if he had not filed the affidavit, the EAT should not have struck out the whole of his appeal.  The affidavit related only to that part of his appeal alleging bias. There was no reason why his other grounds of appeal should not be considered in the usual way.

1. Later, on 8 May 2009, the applicant said that he had in fact supplied the affidavit on 16 February.  He sent confirmation of a recorded delivery tracking number which he claimed related to the delivery of the affidavit.   Enquiries within the EAT office confirmed that a postal delivery with that number had been received and signed for on 16 February and that it was given the case number of this appeal.  However, a search of the office had failed to locate an affidavit or, apparently, any document which might have been inside the recorded delivery envelope.

1. During this period before the hearing of the appeal. The EAT wrote to the respondent’s solicitor to enquire whether he had received a copy of the applicant’s affidavit.  HHJ Birtles had ordered the applicant to serve a copy on the respondent’s solicitor and he contended that he had done so.  However, the solicitor replied that he had not received any affidavit.

1. On 13 May, Cox J dismissed the appeal.  She made a finding of fact that Mr Ruhaza had not supplied the affidavit in time.  She had before her a copy of the affidavit and could see that it had apparently been witnessed by a solicitor. She considered the e-mail correspondence to which I have referred, observing that it was telling that Mr Ruhaza’s initial reaction to the strike out was not to assert that he had filed the affidavit in time.  She also took account of the conflict between Mr Ruhaza’s assertion that he had sent the respondent a copy of the affidavit and the solicitor’s denial.  She observed that because of the recorded delivery letter and the office’s failure to find the content of that letter it was not clear that the affidavit had not been filed.  On the basis of those factors she found as a fact that Mr Ruhaza had not complied with the order.  As a result the Deputy Registrar had been right to strike out the appeal, and that was the end of the matter.

1. I am concerned about the basis upon which Cox J found the facts against the applicant.  As she observed, it was not clear that he had failed to comply with the order. The judge drew adverse inferences from Mr Ruhaza’s initial reaction to the knowledge that his appeal had been struck out and from the letter from the respondent’s solicitors. It seems to me arguable that she failed to sufficient regard to the real possibility that the affidavit had been served on time in the enveloped which arrived on the 16 February. Something had been received on that day, signed for by the EAT staff and assigned to this appeal. Yet whatever it was could not be found. The affidavit produced by the applicant appeared to have been sworn before a solicitor before that date.

1. Although it is rare for the Court of Appeal to find a factual conclusion of this kind to be perverse, I think it is arguable that this one is.  Accordingly it seems to me that there should be permission to appeal.

1. I am also concerned that Cox J did not deal in her judgment with the point that Mr Ruhaza had taken in his written submissions to her, namely that his failure, if so held, to provide an affidavit should not lead to the striking out of the whole of his appeal.  The affidavit related only to his allegations of bias and, he submitted, his other allegations should have proceeded in the ordinary way. The EAT has a procedure for sifting out unmeritorious appeals.  It appears to me that this appeal might, in any event, fail at that stage, but I think it is arguable that it should at least have been subjected to the sift process, either in toto or as an appeal shorn of its allegations of bias. As things were, it was not allowed to proceed into the sift.  I consider that it is arguable that it should be either in part or as to the whole.

1. Accordingly, I grant permission for this appeal to proceed.  It seems to me that the issue will be quite short. I direct that the estimated length of hearing including judgment, which I imagine will probably be given on the occasion, should last no more than two hours. There should be a court of three, but one member of the court could be a High Court judge rather than a Lord Justice of Appeal.

1. There will be a transcript of this judgment.  I ask that it should be expedited, and I direct that Mr Ruhaza should have seven days in which to amend his Grounds of Appeal if he wishes to do so after receipt of the transcript.

Order: Application granted