Mr Conley King v The Sash Window Workshop Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd |
| Judgment Date | 15 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1535 |
| Date | 15 December 2015 |
| Docket Number | A2/2014/4294/(A) & (B) |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 1535
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(JUDGE GRIFFITHS)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Floyd
A2/2014/4294/(A) & (B)
Mr A Briggs (instructed by Direct Access) appeared on behalf of the Applicant
This is a renewed application for permission to cross appeal and for an extension of time for filing a respondent's notice. The respondent's notice, in addition to providing an additional ground for upholding the order made by the judge below, and which is the subject of the main appeal, also seeks permission to cross appeal on a separate paragraph or separate aspect of that same order.
Mr King, who was the claimant in the Employment Tribunal is the appellant in this court. The Sash Window Workshop Ltd and Mr Richard Dollar were the respondents in the Employment Tribunal and are the respondents in this court. The respondents make this application this morning represented by Mr Aidan Briggs.
The appellant was successful before the Employment Tribunal which handed down its judgment on 12th September 2013. For present purposes it is enough to record that the appellant succeeded on a discrimination claim arising out of his dismissal and a claim which has become known as "holiday pay 3". On 1st December 2014 Simler J handed down the judgment of the Employment Appeal Tribunal allowing both the respondent's appeal and the appellant's cross appeal against the Employment Tribunal decision.
As to the appeal, she held it was necessary to remit the matter to the Employment Tribunal for them to make findings going to the issue of whether the appellant was in fact prevented from taking annual leave in the years which he claimed in his holiday pay three claim. I call this "the holiday pay issue". It raises questions as to the meaning and effect of the Working Time Regulation.
As to the cross appeal, Simler J considered that the Employment Tribunal ought to have allowed the general 10% uplift in relation to the level of damages for discrimination along the lines discussed in Jackson LJ's report and in Simmons v Castle [2013] 1 WLR 1239. This latter uplift in the present case would have increased the appellant's damages by some £800. I will call this the "uplift issue".
On 25th February 2015 Lewison LJ granted permission to Mr King to appeal on the holiday pay issue, describing it as "an important point" and that decision was recorded in an order dated 4th March 2015. He also considered and granted the request for a cost capping order which he fixed at £5,000. I should say before I forget that any costs capping order would also cover any respondent's appeal for which I give permission out of time.
The order was received by a Mr Rees, who is an employee of a company called Peninsula Business Services Ltd, on the 9th March. Peninsula Business Services offer, amongst other services, representations in Employment Tribunals to small and medium sized enterprises. Mr Rees represented the respondents at the hearing before the EAT and is continuing to do so in this appeal albeit with the benefit of Direct Access counsel instructed directly by the respondents. Mr Rees is not a solicitor. He had only once before represented a party in a case in the Court of Appeal. In paragraph 6 of his witness statement he says that he has no working knowledge or experience of the Court of Appeal or its rules and procedures. In the only case in the Court of Appeal in which he had previously been involved he said that he became aware that the appellant in that case had appealed when he received the listing window notification letter, for which I will use the abbreviation LWNL, to which was attached an order giving permission to appeal.
The LWNL in that case gave a direction as to the date that a respondent's notice if relied upon would have to be filed. From this one instance of experience he assumed that the time limit for serving a respondent's notice is 14 days from the receipt of the LWNL. He draws attention to the fact that the order giving permission to appeal in this case states that the bundle must be served within 7 days of receiving the LWNL and that he therefore thought that all time limits ran from this date.
Mr Briggs of course now accepts that Mr Rees' understanding was wrong and that the time limit which is laid down by CPR 52.5 is from the " date the respondent is served with notification that the Appeal Court has given the appellant permission to appeal."
The date on which Mr Rees was served with notification that the Appeal Court had given the appellant permission to appeal was 9th March 2015 and accordingly the date for filing the respondent's notice was 23rd March. In fact, the LWNL did not arrive until 23rd April, so Mr Rees calculated wrongly that he had 14 days from the 23rd April, that is to say until 6th May to serve the notice. He accordingly served the notice on 6th May, over 6 weeks' late.
The respondent's notice contains a document entitled "Grounds of response" which very largely endorses the reasoning of the judge and is questionably necessary. Apart from...
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