Sultana Rana v London Borough of Ealing
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Underhill LJ,Lord Justice McCombe |
| Judgment Date | 25 September 2018 |
| Neutral Citation | [2018] EWCA Civ 2074 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 September 2018 |
| Docket Number | Case Nos: A2/2015/2067 |
[2018] EWCA Civ 2074
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HH Judge Eady QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
and
Lord Justice McCombe
and
Lord Justice Bean
Case Nos: A2/2015/2067
A2/2016/2803
Mr William Young (instructed through the Bar Pro Bono Unit) for the Appellant in Rana The Respondents in Rana did not appear
Mr Saul Margo (instructed through the Bar Pro Bono Unit) for the Appellant in Bonnie
Mr Robert Moretto (instructed by the Treasury Solicitor) for the Respondent in Bonnie
Hearing date: 22 nd May 2018
INTRODUCTION
PRELIMINARIES
These two appeals – to which I will refer as Rana and Bonnie – are against separate decisions of HH Judge Eady QC in the Employment Appeal Tribunal refusing to extend time for lodging an appeal against a decision of the Employment Tribunal. They were heard together because they raise a common point of law about the calculation of the time limits for such an appeal. Under the relevant rule time starts to run where the ET's judgment and/or the written reasons are “sent to the parties”. In both the cases before us they were erroneously sent to a former representative of the party wishing to appeal: in a nutshell, the question is whether they were nevertheless “sent to the parties” for the purpose of the rule, and, if they were, what approach should be taken to extending time. We were able to reach a decision before we were in a position to give our reasons, and in order to avoid further delay judgment was handed down on 6 September allowing both appeals with reasons to follow. These are my reasons for that decision.
Despite that common issue it is necessary to consider the two appeals separately. In Bonnie both parties were represented (the Appellant by Mr Saul Margo and the Respondent by Mr Robert Moretto) whereas in Rana the Respondents made the choice not to instruct counsel but to rely on their solicitors' skeleton arguments, with the result that only the Appellant was represented (by Mr William Young). In those circumstances by agreement between counsel Mr Margo made his submissions before Mr Young, and the argument in Bonnie was inevitably more extensive. That being so, I will take Bonnie first, although it is in fact the later in point of time; but I will in dealing with the common issue refer so far as necessary to the submissions of Mr Young and the Respondents in Rana.
The quality of the written and oral submissions by all counsel was high, but Mr Moretto will understand if I express the Court's particular gratitude to Mr Margo and Mr Young, who both appeared pro bono.
THE BACKGROUND LAW
The provision governing the time limit for appeals to the EAT is rule 3 (3) of the Employment Appeal Tribunal Rules 1993 (as amended). The rule is rather elaborate, because it deals separately with a variety of different ways in which the ET's judgment or the reasons for it may be promulgated. But the relevant part for our purposes reads:
“The period within which an appeal to the Appeal Tribunal may be instituted is–
(a) in the case of an appeal from a judgment of the employment tribunal–
(i) where the written reasons for the judgment subject to appeal–
(aa) were requested orally at the hearing before the employment tribunal or in writing within 14 days of the date on which the written record of the judgment was sent to the parties;
(bb) were reserved and given in writing by the employment tribunal
42 days from the date on which the written reasons were sent to the parties;
(ii)-(iii) …
(b)-(d) …”
The time limit in rule 3 (3) can be extended under the general discretion available to the EAT under rule 37, exercisable in the first instance by the Registrar but on appeal by a Judge. The principles governing the exercise of that discretion by the EAT, and its review on appeal, have been considered by this Court on several occasions, most recently in Green v Mears Ltd [2018] EWCA Civ 731, in which I gave the leading judgment. It is not necessary to repeat the exercise which I carried out there. In short, the principles first enunciated by Mummery J in Abdelghafar v United Arab Emirates [1994] ICR 6, as expounded in Jurkowska v Hlmad Ltd [2008] EWCA Civ 31, [2008] ICR 841, continue to apply. 1 Very broadly, if there is no good explanation for the failure to meet the deadline for appealing, it is exceptional for the discretion to extend time to be exercised; and a strict view is taken of what constitutes a good explanation or exceptional circumstances.
Two other provisions, or groups of provisions, are potentially relevant to the issue before us.
First, on 29 July 2013 the President of the EAT issued a Practice Direction under powers contained in section 29A (1) (b) of the Employment Tribunals Act 1996. Paragraph 5.3 deals with the time limit applicable to appeals against a judgment. Most of it is immaterial for our purposes, but it concludes (so far as relevant):
“The date of … the written reasons for the Judgment is the date when they are sent to the parties, which is normally recorded on or in … the written reasons.”
The final part of that statement reflects the fact that it is standard practice for the ET's written reasons to conclude with a formal endorsement, signed by a member of the ET staff, stating the date on which they were “sent to the parties”.
Secondly, it is necessary to be aware of the provisions of the Employment Tribunal Rules of Procedure 2013 about the promulgation of judgments and written reasons. Rule 61 (2) provides that where a judgment is not given at a hearing it will be reserved “to be sent to the parties as soon as practicable in writing”. Rule 62 (2) reads (so far as material):
“In the case of a decision given in writing the reasons shall also be given in writing. In the case of a decision announced at a hearing the reasons may be given orally at the hearing or reserved to be given in writing later … .”
Rule 86 provides that “documents” – which term must include reserved judgments and/or reasons – may be “delivered” to a party by various means, including post or electronic communication, to (by paragraph (2))
“the address given in the claim form or response (which shall be the address of the party's representative, if one is named) or to a different address as notified in writing by the party in question”.
There was some discussion before us about whether there was any significance in the fact that the ET Rules use the term “delivered”, whereas the EAT Rules say “sent”. I am sure there is none. In fact, the version of the ET Rules in force when the EAT Rules were made – being those scheduled to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 – also used “sent”; as did the subsequent 2004 Rules. The language was only changed in 2013 in order to cover the practice, which had developed in some cases, of documents not being sent by post or e-mail but being handed to the party at a hearing: this had caused some awkwardness in Jurkowska – see para. 33 in the judgment of Rimer LJ (p. 854 B-C).
BONNIE
PROCEDURAL HISTORY
It is not necessary to say anything about the substance of the Appellant's claims, which were of unfair dismissal and disability discrimination. In her ET1 she nominated a firm of solicitors as her representative and gave their address; as the form makes clear, any correspondence would thereafter be with them rather than with her, as long as they remained her representatives. She subsequently notified the tribunal that they were no longer acting for her and asked for all communications to be sent to her home address (which was the same as appeared in the ET1). At some later point a firm called Grand & Machyle took over as her representatives.
The hearing of the Appellant's claims took place over two weeks in the London Central Employment Tribunal, starting on 19 January 2015. On 21 January Grand & Machyle wrote to the tribunal coming off the record, and thereafter the Appellant represented herself. They did not in that letter explicitly notify the tribunal of a different address at which it or the Respondent should communicate with the Appellant, as required by rule 86; but it has not been argued before us that their address remained valid for those purposes, and it appears to be common ground that the Appellant's address thereafter for the purpose of the rule was either her postal address, as given in the original ET1, or her e-mail address (which she had given to the tribunal in the course of the hearing).
At the conclusion of the hearing the ET reserved its decision. On 28 April 2015 the judgment and written reasons were signed by Employment Judge Tayler. In a case where the decision is reserved these form a single document, and for convenience in this case (though not in Rana) I will refer to both as “the judgment”. The judgment ends with the standard endorsement (see para. 7 above) recording that it was sent to the parties on the same day that it was signed.
In fact, however, the Appellant's copy of the judgment was sent not to her in person but to Grand & Machyle, who were no longer acting. The Respondent's solicitors spotted straightaway what had happened and, sensibly and in accordance with the over-riding objective, e-mailed the tribunal, the Appellant herself and Grand & Machyle to point out the mistake: they gave the tribunal the Appellant's e-mail address. Grand & Machyle do not appear to have responded. More remarkably, and most reprehensibly, the tribunal did not respond either, and the Appellant herself...
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