J v K and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Baker,Sir Patrick Elias |
| Judgment Date | 22 January 2019 |
| Neutral Citation | [2019] EWCA Civ 5 |
| Docket Number | Case No: A2/2017/1681 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2019 |
[2019] EWCA Civ 5
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Employment Appeal Tribunal
HH Judge Hand QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Baker
and
Sir Patrick Elias
Case No: A2/2017/1681
Mr Alexander Line (instructed through the Bar Pro Bono Unit) for the Appellant
Mr Dominic Bayne (instructed by K's Legal Services Department) for the Respondents
Mr Declan O'Dempsey (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing date: 28 th November 2018
Approved Judgment
INTRODUCTION
This is yet another appeal about extensions of time for appealing to the Employment Appeal Tribunal from a decision of the Employment Tribunal. The circumstances giving rise to the appeal can be summarised as follows.
The Appellant brought proceedings against the Respondents in the Employment Tribunal: the details of his claim are immaterial for our purposes. By an order of Employment Judge Jones sent to the parties on 16 March 2016 the claim was struck out. The Respondents thereupon made an application for costs. By a judgment and written reasons, again of Employment Judge Jones, sent to the parties on 19 August 2016 the Appellant was ordered to pay the Respondents' costs in the sum of £20,000.
The Appellant wished to appeal. Under rule 3 (1) (a) (i) of the Employment Appeal Tribunal Rules of Procedure 1993 (as amended) he was obliged to institute his appeal by serving on the EAT a notice of appeal and various specified additional documents by no later than 42 days after the date that the ET's reasons were sent – that is, by 30 September 2016. By rule 37 (1A) he was obliged to serve the relevant documents by 4 p.m.
At 3:55 p.m. on 30 September 2016, i.e. five minutes before the deadline on the last day for appealing, the Appellant sent an e-mail to the EAT with an attachment containing the notice of appeal and specified documents. The communication failed because the attachment was too large. We do not know how large it was, but the capacity of the EAT's server was 10mb, so presumably it was larger than that. He forthwith re-sent the attachments as a number of smaller files, and they were all received by the EAT by 5 p.m. Since that was after the time required by rule 37 (1A), they were treated as received on the next working day, which was 3 October.
The Appellant was accordingly notified that the appeal had been instituted out of time and invited to apply for an extension. He did so. His application was refused by the Registrar on the papers. He appealed to a Judge under rule 21. Such appeals are heard orally by way of rehearing ( Nicol v Blackfriars Settlement [2018] EWCA Civ 2285). The appeal was heard by HH Judge Hand QC on 5 April 2017. The Appellant appeared in person. The Respondents did not appear but put in written submissions.
I will refer later, so far as necessary, to the nature of the case advanced by the Appellant before Judge Hand, but I should say at this stage that it included a submission that he was suffering from serious mental ill-health. There was no medical evidence about his condition, but he said that he had been diagnosed as HIV-positive and that that had led to his suffering from depression, anxiety, stress and suicidal tendencies. He also produced some internet print-outs describing the psychological/psychiatric impact of being diagnosed as HIV-positive. This Court has since received, in connection with the adjournment application to which I refer below, a letter from his GP dated 22 May 2018 in the following terms:
“This is to confirm that the above named suffers from Cyclothymic Mood Variation Pattern. Although I am convinced that he might suffer from Bipolar Disorder, it has not been confirmed because it was not possible to convince [him] to accept the referral for a full assessment with a Psychiatrist. I have been his GP since June 2016 and have got to know him as a friendly, reflective and understanding person. However, there has been a significant deterioration of his mental state during the last year. He is self-neglecting and does not take care of necessary activities of daily life. His mental state does not allow him to communicate directly with people. I have tried to contact him by telephone several times but he will not respond and he will not request a call back. He is in a state where he is locking himself away but does not accept the help we have offered him. His communication with us is by e-mail so that he does not have to see us in person. I cannot comment on his actual mental state because that would require a face to face assessment. However, from the communication I have had with him during the last 2 months it is more than likely that his mental state does not allow him to pull through a Court hearing without further psychiatric decompensation that also might involve admission to a Psychiatric hospital.”
On the material before us it is impossible to be specific about the nature of the Appellant's condition, either now or at the time of the hearing before Judge Hand, but I am prepared to accept, as was Judge Hand, that he was at the material times suffering from a degree of mental ill-health.
I should add in this connection that the Appellant has throughout the course of this appeal written frequent and lengthy letters to the Court, which, though articulate and intelligent, contain a great deal of offensive, not to say abusive, material about the judges, court staff and former colleagues whom he blames for his present troubles. It appears that he was similarly intemperate in his oral submissions to Judge Hand and in his communications with the ET. I am prepared to assume that this too is a manifestation of mental ill-health.
Judge Hand reserved his judgment, which was handed down on 10 May 2017. He dismissed the appeal. Again, I will refer to the details of his reasoning, so far as necessary, in due course, but I should mention at this stage that at para. 36 of his judgment he gave a lengthy summary, in fifteen numbered points, of the principles appearing from the case law about the extension of time limits in the EAT. This referred to the broadly similar summary by HH Judge McMullen QC in Muschett v Hounslow London Borough Council [2007] UKEAT 0281/07, [2009] ICR 424, but it is not directly derived from it.
The Appellant was given permission to appeal to this Court by Lewison LJ, limited to two grounds which he identified as follows:
“(1) whether the statements of principle at [36] of the EAT's judgment needs modification to take account of the duty to make reasonable adjustments under the Equality Act 2010; and if so whether reasonable adjustments should have been made for the Appellant;
(2) whether the combination of (a) the very modest delay of one hour in transmitting the required documents to the EAT and (b) the reason for the delay being the limited size of the EAT's inbox ought to have amounted to exceptional circumstances such as to require an extension of time in order to comply with the overriding objective.”
Unfortunately the appeal has taken a long time to come on. Initially this was because it was thought necessary to await the decision in Green v Mears Ltd [2018] EWCA Civ 751, which re-examined the principles applicable in cases of this kind. That decision was given in April 2018, and the appeal in the present case was listed on 23 May. That hearing had, however, to be vacated at short notice because the Appellant, who was unrepresented, was too ill to appear: it was in that connection that the Court received the letter from his GP which I have quoted above. I was concerned, in the light of what we were told about his mental health, that he remained unrepresented. In the formal order adjourning the hearing I urged him to obtain representation through the Bar Pro Bono Unit, but it was unclear whether that would be possible. Accordingly, and having in mind the first of the two grounds on which Lewison LJ had given permission, I also invited the Equality and Human Rights Commission to apply to intervene in order to assist the Court on the question whether guidance needed to be given about the relevance of a party's mental ill-health in the context of an application for an extension of time for appealing. I am grateful to the Commission for accepting that invitation, and we had the benefit of very useful written submissions from Mr Declan O'Dempsey of counsel, who also attended the hearing.
In the event the Bar Pro Bono Unit was also able to assist by procuring the services of Mr Alexander Line of counsel to represent the Appellant. He produced, at short notice, exemplary written submissions; and his oral submissions to us were also of high quality. The Respondents were also well represented by Mr Dominic Bayne of counsel.
In the ET and EAT the parties were anonymised, because of the Appellant's HIV-positive status. Judge Hand in his judgment referred to an earlier observation of my own (in the context of a different proposed appeal by the Appellant) querying whether anonymity was really necessary, and the Appellant apparently accepted before him that his condition was “well-publicised in some quarters as a result of his frequent litigation”; but Judge Hand was persuaded that it was indeed justified and I would not seek to go behind his conclusion.
It is unnecessary to recapitulate here the general principles about the exercise of the discretion to extend time for appealing in the EAT: the case-law was recently reviewed and confirmed in Green v Mears. In bare outline, where there is no good reason for the time limit being missed, even by a very short time, an...
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