ROGERS v (1) WHADDON HOUSE LTD (2) MARLER AND MARLER (3) PRACTICAL HR LTD UKEATPA/0919/15/DM
Quick Note: Procedure, extensions of time, EAT appeal, just and equitable test
Appeal No. UKEATPA/0919/15/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 23 June 2016
Judgment handed down on 4 August 2016
THE HONOURABLE LADY WISE
MR J P ROGERS APPELLANT
(1) WHADDON HOUSE LTD
(2) MARLER AND MARLER
(3) PRACTICAL HR LTD RESPONDENTS
Transcript of Proceedings
APPEAL FROM REGISTRAR’S ORDER
|For the Appellant||MR DAVID ANTHONY
|For the Respondents||MS ELAINE BANTON
Browne Jacobson LLP
Castle Meadow Road
JURISDICTIONAL POINTS – Extension of time: just and equitable
In an appeal against an Order of the Registrar of the EAT to refuse an application for an extension of time to lodge an appeal, there is no restriction on the material that can be considered by the EAT Judge. Any material properly before the Judge at the appeal can be considered, if relevant to the issue of the merits of the application to extend time to lodge the appeal.
In a case where the Employment Tribunal found that the Claimant and his representative had deliberately and persistently failed to comply with Orders and the reasons given for extension of time to lodge an appeal had altered over time and were inconsistent with the Claimant’s own position, the irresistible conclusion was that the application for extension represented the type of questionable tactics and procedural abuse cautioned against in United Arab Emirates v Abdelghafar and Abbas and extension of time to appeal would not be granted.
THE HONOURABLE LADY WISE
- The Claimant in this case has appealed an Order of the Registrar of the Employment Appeal Tribunal (“EAT”) dated 15 April 2016 refusing to extend time for appealing against a decision of an Employment Judge (Grewal) striking out his claim of unfair dismissal against the Second and Third Respondents and finding that the claim of unfair dismissal against the First Respondent has little prospect of success. The Employment Tribunal also ordered the Claimant to provide, by 12 November 2015, evidence of his means and any written representations about his ability to pay a deposit Order. The claim of disability discrimination was also struck out. Although the Order was dated 26 October 2015 it was sent to parties on 5 November 2015. Accordingly, the 42 day period within which the Claimant could, as of right to, lodge a Notice of Appeal, expired at 16.00 on 17 December 2015. The Claimant was represented both before the Employment Tribunal (“the ET”) and at the hearing before me by Mr David Anthony, lay representative, and the Respondents were represented at the hearing before me by Ms Banton of counsel. I will refer to the parties as Claimant and Respondents as they were before the Employment Tribunal.
The circumstances in which a Notice of Appeal was lodged and an extension of time sought
- On 17 December 2015 at 16.04, just after the 16.00 deadline, the Claimant’s representative, Mr Anthony, sent an email to the EAT, in which he stated that his Notice of Appeal would be late due to a “printing issue”. A series of emails were then sent by him to the EAT over the weekend. The appeal in its proper form was ultimately received and instituted on Monday 21 December 2015, four days out of time.
- On 13 January 2016 the EAT wrote to the Claimant’s representative Mr Anthony, recording that the appeal lodged was considered to be four days out of time and advising him that if he wished to pursue the appeal he would require to lodge an application to extend time within which to lodge the Notice of Appeal, together with reasons for the lateness. The letter continues:
“Your application and any supporting evidence will be copied to the Respondents for comment. On receipt of the Respondents’ comments you will be given the opportunity to provide any final submissions that you may wish to make. Submissions of both parties will then be put to the Registrar for consideration.”
- The letter then suggested a 14 day period within which the application and reasons should be submitted. Mr Anthony sent an email to the EAT on 27 January 2016 requesting further time to lodge the application for extension of time. On 8 February 2016 he submitted the extension of time application. That application gave two reasons for the late lodging of the appeal, namely (a) the Claimant’s lack of capacity to give instructions in relation to “the EAT application” and (b) the printing problem already referred to in December 2015.
- The Respondents, through their representative, submitted detailed written opposition to the extension of time application by email of 19 February 2016. Attached to that email was a copy of a psychiatric report from Dr H Needham-Bennett, dated 14 December 2015. That report was in contemplation at the time of the Employment Tribunal decision. Dr Needham-Bennett had been instructed following Orders made by Employment Judge Wade on 21 April 2015 but there had been a delay in the process of the Claimant attending for an appointment – see paragraphs 4 and 25 of the ET’s Reasons of 26 October 2015. On 15 April 2016 the Registrar of the EAT, having considered the Claimant’s application for an extension of time in which to present the Notice of Appeal, refused that application and gave reasons for her decision which were sent to the parties’ representatives. The Claimant appeals against that Order.
Argument at the appeal hearing about documentation
- Prior to the hearing before me Mr Anthony for the Claimant had refused to compile or agree a hearing bundle. The Registrar had directed that the EAT produce a core bundle and that was done on 1 June 2016. On 3 June the Respondents’ agents sent a proposed supplementary bundle to the EAT, explaining that they had been unable to clarify with Mr Anthony which, if any, of the documents contained in it he was willing to include. Amongst other documents the Respondents’ bundle included the report of Dr Needham-Bennett dated 14 December 2014, the conclusion of which is that the Claimant has capacity to participate in the ET proceedings and, in particular, to provide instructions to his representative. Documentation relating to separate possession proceedings in the County Court at Hammersmith between the Claimant and the Respondents was also included. Those documents post-date Dr Needham-Bennett’s report and include two witness statements signed by the Claimant, one in December 2015 and the other in February 2016.
- Mr Anthony first denied that he had received the Respondents’ supplementary bundle and accused Ms Banton of lying when she confirmed that her information was that the documents had been sent to him by special delivery on 3 June and signed as received on 6 June 2016. It became apparent, however, that these were documents he had seen before and had possession of. His argument then became that it would be contrary to paragraph 8 of the Employment Appeal Tribunal Practice Direction 2013 if the documents were considered at this appeal because they were not documents that had been before the ET. He submitted that I should have regard only to the medical report of Dr Lawrence, dated 27 September 2015, which indicated that the Claimant lacked capacity at that time, albeit prepared in the context of defending separate Country Court proceedings. There was a dispute about whether Dr Lawrence’s report had been before the ET at the time of the 30 September hearing. Mr Anthony said that he had made the Tribunal aware of its contents, Ms Banton’s instructions were to the contrary. The ET’s Reasons, at paragraphs 4 and 25, make no mention of Dr Lawrence’s report although the referral to Dr Needham-Bennett is detailed. As Dr Lawrence’s report related only to separate proceedings, this is hardly surprising.
- In my view the documents in the supplementary bundle all relate to the extension of time to lodge an appeal and are accordingly relevant to this appeal against the Registrar’s decision to refuse such an extension. Dr Needham-Bennett’s report was before the Registrar and is clearly relevant to the decision that I have to make. Further, Rule 8 of the Practice Direction 2013 relates to substantive appeals to the EAT. This is an appeal against the Registrar’s decision not to extend time. It is a stand alone type of appeal with no prescriptive rules. As indicated below, the approach I must take is to consider the matter afresh while not ignoring the Registrar’s decision. Accordingly in my view, any material properly brought to my attention that is relevant and assists my determination can and should be considered. This is particularly so in a situation where the Claimant’s representative has refused to co-operate with the preparation of a core bundle of documents for use at the hearing. I am satisfied that no unfairness results from my considering all of the available material. It is all in the possession of the Claimant and in the case of the witness statements, they emanate from him personally. For these reasons I consider it proper to have regard to all of the documentation produced, although as I will explain, the outcome of the appeal would be the same even had I not taken into account any material not before the ET.
The applicable law
- There is no dispute about the law applicable to an appeal of this sort and it can be stated relatively briefly. Rule 3 of the Employment Appeal Tribunal Rules 1993 (as amended) provides that any Notice of Appeal must be lodged within 42 days of the date the Written Reasons for the Judgment or an Order or Decision of a Tribunal was sent to the parties. Where an appeal is lodged late, an extension of time can be sought and where the Registrar refuses to exercise her discretion under Rule 37 to extend time to lodge the Notice of Appeal, an appeal against her decision can be taken in terms of Rule 21.
- The leading case on this issue remains that of United Arab Emirates v Abdelghafar and Abbas  ICR 65 EAT. There it was confirmed that parties should not leave the lodging of a Notice of Appeal until the last few days of the 42 day period. No party is entitled to an extension, nor should they expect to receive one. The EAT must not extend the time limit unless it is satisfied that there is a full, honest and acceptable explanation for the delay and the EAT should be alert to any evidence of intentional default, procedural abuse or questionable tactics – paragraphs 28 and 29.
- In Muschett v London Borough of Hounslow  ICR 424 EAT it was held that an excuse may not be sufficient unless it explains why a Notice of Appeal was not lodged throughout the entirety of the period. In determining whether an extension should be afforded, all factors, including the merits of the appeal itself, may be considered by the EAT. In essence, this particular type of appeal constitutes a re-hearing and the EAT must consider afresh whether discretion should be exercised to extend time. The Registrar’s reasons and judgment are of interest but are not to be analysed in the way that one looks to an ET Decision to discern whether or not there is an error. It is clear from Muschett that there is an ability to hear evidence in cases of this sort, where considered appropriate.
- Reference was also made in the course of argument before me to the cases of Woodward v Abbey National plc  IRLR 782 EAT and Jurkowska v HLMAD Ltd  ICR 841 CA but these add nothing to the general principles outlined above.
Submissions at the appeal hearing
- Mr Anthony for the Claimant had not lodged a skeleton argument prior to the hearing and indicated that he would simply make oral arguments. However, towards the end of the hearing he presented a hand written summary of the submissions he had made and I have taken that into account. In opening his argument Mr Anthony confirmed that he was no longer relying on the printer problem issue in seeking an extension of time. He accepted that the authorities were against him on that point, as he had sought to initiate the appeal right at the point when the deadline was passing. Only the lack of the capacity argument was pursued.
- Mr Anthony submitted that the Registrar had been wrong to state that “the appellant, although too unwell to attend the hearing, did not lack legal capacity”. The Registrar appeared to take the view that the medical evidence before the ET confirmed capacity when in fact Dr Lawrence’s report concluded to the contrary that the Claimant lacks capacity. Reference was made to an email sent by Mr Anthony to the ET on 19 November 2015 in the context of applying for an extension of time to file grounds for reconsideration of the Orders made by the Tribunal. In that correspondence, reference had been made to “Mr Rogers lack of mental capacity and general psychiatric condition – availability of ‘Fresh Evidence’”, although it was acknowledged that this post-dated the decision of the Tribunal sought to be appealed. In any event, the report of Dr Lawrence dated 27 September 2015 was the primary material relied on by Mr Anthony as support for the lack of capacity that was now presented as the sole reason for extension of time.
- Mr Anthony contended that this case presented a novel situation. He submitted that there was no case law dealing with a lack of capacity in the context of an appeal against the refusal to extend time to lodge an appeal. The guidance in Jurkowska v HLMAD Ltd and Muschett v London Borough of Hounslow were said to support the Claimant’s appeal. So far as the medical evidence was concerned it was anticipated that the Respondents would seek to argue capacity in the ET proceedings and continue on the basis of Dr Needham-Bennett’s report. However, the report of Dr Lawrence was in contradiction to that, albeit prepared for different proceedings. The conflict in the medical evidence and the issue of what reports were available to the Tribunal might have to be resolved by evidence and a suggestion was made that I should hear evidence at the appeal although no notice of or application for that had been made and the suggestion seemed to be that I should resolve the dispute about whether Dr Lawrence’s report had been before the Tribunal through such evidence. Mr Anthony’s position was that throughout the relevant 42 day period the Claimant had “required a litigation friend” and accordingly lacked legal capacity.
- In reply Ms Banton pointed out that the decision of the ET had been based on the Claimant and his representative’s deliberate and persistent failures to comply with the Tribunal’s Orders. Mr Anthony had been obstructive and uncooperative – paragraph 33 of the Reasons. While the Claimant’s mental illness had been raised as an issue at an earlier stage, the record of the case management hearing on 21 April 2015 included a reference to medical opinion provided at the time, which concluded that the Claimant, while too unwell to attend a hearing, did not lack legal capacity. The Tribunal had made a variety of Orders, in particular for a specialist report, so that adequate information about the Claimant’s health could be provided. That may be the medical opinion referred to by the Registrar. In any event, there is no record of any suggestion being made to the ET at the hearing on 30 September 2015 that the Claimant lacked legal capacity. He had been represented throughout by Mr Anthony, who had not reported any absence of instructions due to lack of capacity to the ET on 30 September.
- The onus was on the Claimant to rebut the presumption of capacity during the relevant period and he had failed to do so. The available medical evidence did not support a lack of capacity in the period leading up to the expiry of the 42 days. If reliance was placed on all of the available medical evidence, the capacity argument did not even “get off the ground”. Even if the medical evidence was ignored, no exceptional circumstances had been made out. The original reason given for lateness had been “printing issues”. Those issues had been resolved by 21 December 2015 and an appeal in proper form was received by that date. The issue of lack of capacity as a reason for extension of time was not raised until February 2016, by which time the Claimant appeared to be participating fully in the Country Court proceedings.
- It is not disputed that the Claimant’s representative, Mr Anthony, made no contact with the EAT until 16.04 on 17 December 2015, four minutes after the expiry of the 42 day period. The sole reason offered for lateness at that time was a “printing issue”. When the appeal was lodged in its full form on 21 December 2015 it included one and a half pages of typed grounds of appeal. Those were divided into two sections. Three arguments were put forward in relation to the first issue of the deposit Order and strike out Order of the Tribunal:
(1) a claim of judicial bias on the part of the Employment Judge,
(2) an alleged breach of Rule 54 of the Employment Tribunal Rules,
A second separate ground contended that the strike out Order was disproportionate. The grounds of appeal bear the date of 17 December 2015 and are signed by Mr Anthony next to the statement “Issued on behalf of Mr JP Rogers Claimant by Mr David Anthony Lay Representative (Voluntary)”.
- No suggestion was made to the EAT in December 2015 or January 2016 that the Claimant lacked capacity to instruct Mr Anthony as his representative. The grounds of appeal make serious allegations against a member of the judiciary. In my view, even a lay representative with no legal qualifications would understand that making such allegations on someone’s behalf requires their consent and approval of the line taken. Mr Anthony did not suggest at the time the appeal was lodged, or even at the hearing before me, that he had made those allegations without the Claimant’s knowledge or consent. No indication was given to the EAT in December 2015 or January 2016 that the grounds had been lodged as a holding exercise due to the Claimant’s ill health. It is also indisputable that the issues surrounding the Claimant’s health had been a live issue in the ET proceedings. One of the claims was that the Claimant had been subjected to direct discrimination related to his disability. Dyslexia and severe depression were initially named as the disability. By 21 April 2015 at the Preliminary Hearing, Mr Anthony’s position was that the only disability on which he relied was dyslexia (paragraph 4 ET Reasons). However, there was clearly a concern about the Claimant’s general ill health and inability to attend the Preliminary Hearing. The Orders made to identify a suitable specialist selected by the Claimant from a list of three names provided by the Respondents were clearly designed to ensure that a fair hearing could take place. There was also a concern about whether the Respondents had sufficient information to respond to the discrimination claim. Accordingly, the Tribunal ordered the Claimant to produce a detailed narrative describing the events he said amounted to unlawful disability discrimination. Copies of his full GP and other health records were also to be produced, redacted of anything unrelated to dyslexia or mental health issues.
- In its Written Reasons at paragraphs 6 and 25, the Employment Tribunal narrates the ways in which the Claimant and/or Mr Anthony failed to comply with these Orders. In particular, the detailed narrative was never provided to the Respondents, whose agent had made it clear that, notwithstanding Mr Anthony’s claim to the contrary, none had been received. Mr Anthony did not even bring the missing narrative to the Employment Tribunal hearing, saying that he did not consider that it was relevant to that hearing. He failed to take up a further opportunity given to him at the hearing to produce it. The Employment Tribunal’s Reasons give a full account of the obstructive behaviour that led to the conclusions in paragraphs 29 to 33. The Tribunal was “driven to the conclusion” that the Claimant had not provided the particulars of the disability discrimination claim because he had no basis for alleging any link between his treatment by the Respondents and his dyslexia. There is no mention anywhere in the Employment Tribunal’s Reasons of an alleged inability on the part of the Claimant to instruct Mr Anthony during the period April through to September 2015 and I am satisfied that no issue of lack of legal capacity could have been raised at the Tribunal hearing on 30 September.
- Turning to the 42 day period, which ran from 5 November to 17 December inclusive, the question is whether the Claimant, through his representative, has shown that he lacked capacity during that period such as would amount to exceptional circumstances justifying an extension of time to lodge an appeal. I have already explained why, as there is medical evidence and other material available that is relevant to this issue, I consider it necessary and appropriate to examine its terms. The papers available to the EAT include a report of Dr Robin Lawrence dated 27 September 2015 prepared in connection with possession proceedings at the County Court at Hammersmith. That report concluded that the Claimant did not, at that date, have capacity to understand Court proceedings or to instruct a solicitor. He was diagnosed as suffering from severe depression. The later report, that of Dr Needham-Bennett dated 14 December 2015, confirms the diagnosis of depressive disorder, but expresses the view that it was now best conceptualised as a recovering depressive disorder currently mild in nature. That expert’s opinion was that the Claimant has capacity to understand the issues before him and would be able to participate in the ET proceedings. In particular, he would be able to provide clear and important instructions to his representatives in respect of the day to day management of those proceedings. The date of the second report is of some significance. Contrary to Mr Anthony’s submission, I do not accept that these two reports are entirely conflicting and contradictory. The nature of the disorder from which the Claimant suffers is such that fluctuations in severity are to be expected. It is apparent from reading the reports that it has been difficult for the Claimant to recover, while legal proceedings are ongoing, from the depression that had developed as far back as 2011. However, the more recent of the two reports gives a far more optimistic opinion and prognoses based on an assessment that took place in late October 2015, just prior to the commencement of the material 42 day period with which I am concerned. It is prepared by the specialist identified in the context of the Employment Tribunal proceedings. More significantly, it is Dr Needham-Bennett’s report that the Claimant himself has used to support a proposed application in the County Court proceedings to dispense with a litigation friend through the official solicitors office. On 17 December 2015, the Claimant appears to have signed a witness statement as part of an application under CPR 21, confirming that he regards the need for a litigation friend as having ceased and lodging Dr Needham-Bennett’s report of December 2015 as evidence “… that I have capacity to conduct proceedings in my employment tribunal case”. When asked about this at the hearing before me, Mr Anthony first claimed that he had no direct involvement in those proceedings and then contended that the Respondents were taking a different view on capacity in these proceedings to that being taken in the possession proceedings. In any event, the papers include a further signed witness statement by the Claimant dated 25 February 2016, explaining a delay in submitting the application and confirming that the need for appointment of a litigation friend had ceased due to his regaining capacity to conduct proceedings following the Order in the County Court proceedings of 18 November 2015.
- Mr Anthony was unable to give any coherent explanation for these developments. It was not suggested that the witness statements had not been signed by Mr Rogers. I conclude that, whatever the state of his ability to conduct proceedings in late September 2015 (and I make no finding on that), Mr Rogers appears, on a straightforward reading of the available material, to have had legal capacity in the context of instructing an appeal to the Employment Tribunal during the 42 day period leading up to the 17 December deadline. Even if I had not been prepared to look at the medical reports I would still have concluded that there was no basis to support Mr Anthony’s contention that the Claimant lacked capacity “throughout the 42 day period”. I do not accept that Dr Lawrence’s report was before the Employment Tribunal at the time of the 30 September hearing as it seems to me to be inconceivable that the decision would have failed to refer to it. Accordingly, if Mr Anthony’s approach that I could look only at documents that had been before the Tribunal was correct, neither report could be considered and the presumption of capacity would prevail. For the reasons I have given I consider that such a narrow approach is not required in appeals of this sort and that all of the available material is open for me to consider.
- In applying the law to the facts of this case I take into account that before granting the indulgence of an extension of time I would have to be satisfied that there is a “full, honest and acceptable explanation” of the reasons for the delay. I am not so satisfied. The initial reason for delay was the printing issue and that is now conceded as unstateable. A lack of capacity ground was not proposed as a reason until February 2016, by which time the Claimant seems to have taken various initiatives in other proceedings on the basis that he has legal capacity as evidenced by Dr Needham-Bennett’s report of December 2015. Had Mr Anthony been prepared to give a full and coherent account of any alleged loss and subsequent recovery of capacity, that could have been explored, but he refused to do so. In the circumstances there was in my view no issue that could have been resolved by evidence at the hearing before me. However, the lack of any acceptance that, whatever the position in September 2015, the Claimant clearly had capacity thereafter, militates against a conclusion that he may have lacked capacity at some early stage in the 42 day period. The background of a continued failure to comply with Orders of the Employment Tribunal and the lack of candour shown by Mr Anthony on behalf of the Claimant is a significant factor. I conclude that the Claimant’s side has employed the very questionable tactics and procedural abuse cautioned against in United Arab Emirates v Abdelghafar and Abbas. I have given some consideration to the grounds of appeal in the Notice of Appeal as a cross-check on the exercise of discretion. Nothing stated therein gives rise to any concern on my part that an otherwise arguable appeal will not be taken in consequence of my decision.
- In all the circumstances I am not prepared to exercise discretion to grant an extension of time for this appeal to be brought late. The appeal against the Registrar’s Order is refused.
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