[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morgan Moore Engineering Ltd v Engineering Construction Industry Training Board [1999] ScotCS 14 (12 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/14.html Cite as: [1999] ScotCS 14

[New search] [Help]

The appellants were assessed under the Industrial Training Levy (Engineering Board) Order 1994 by the Engineering Construction Industrial Training Board for the period from 6 April, 1993 to 5 April, 1994. They intimated an appeal by letter dated 30 January, 1995, and entered into correspondence with the Board in which they challenged the basis of the assessment, contending that the company was not engaged in engineering construction activities within the scope of the order. The correspondence resulted in a review of the assessment. The Board resolved to maintain the assessment. The appellants then sought to prosecute an appeal before an industrial tribunal. The Board contended that the appeal was out of time. The Board's view on that matter was sustained by an industrial tribunal which dismissed the appeal on 4 November, 1997. The decision was registered and copied to the parties on 7 November, 1997. The present appeal is taken against the decision of the industrial tribunal, which was taken by the chairman.

In terms of section 12 (4) of the Industrial Training Act, 1982, a person assessed to levy may appeal to an industrial tribunal and the relevant levy order must make provision for the time within which an appeal may be made. The 1994 order provided by regulation 9:

The tribunal's powers under paragraph (3) may be exercised by the president.

The Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations, 1993, paragraph 8 (4) (a) and schedule 3 prescribe the rules of procedure to be applied in appeals against assessment to levy. Rule 1 provides:

Form 1 provides for a notice of appeal to be addressed to the Board and to the secretary of the office of industrial tribunals (Scotland). Both copies have to be sent to the Board. It is for the Board to present the process to the industrial tribunal. The form of notice requires the identity of the appellant, the date and reference number of the assessment, the grounds of appeal and an address for service of documents. It also identifies the appeal as made under section 12 of the 1982 Act.

The first issue before the industrial tribunal, and before me, was whether the company's letter of 30 January, 1995 met the requirements of the regulations and was a valid appeal. The letter was addressed to the Board. It was in these terms:

The tribunal held that the letter was not substantially in accordance with the requirements of form 1, was not in duplicate, and was therefore not an appeal. The respects in which the letter differs from the regulatory form are obvious. It was a letter and not a form. The letter was not in duplicate. It was not addressed to the secretary of tribunals. It did not refer to section 12 of the 1982 Act.

For the appellants, Mr Napier argued that the letter contained enough of the material required by form 1 for the appeal to be registered. Miss Milligan for the Board argued that the letter was too seriously deficient in content to be substantially in accordance with the requirements of form 1. I was referred to Martin v British Railways Board [1989] I.C.R. 24; and Gateshead Metropolitan Borough Council v Mills & Others 16 July, 1992 in this connection.

In Martin Wood J. discussed the application of rule 3 of the Employment Appeal Tribunal Rules 1980 which provided for use of a notice of appeal "in, or substantially in accordance with.." specified forms set out in those rules. At page 32 of his opinion, Wood J. says that this formulation "clearly envisages that some document other than the printed forms can be used." I agree with that observation. The use of the form itself is not mandatory if something "substantially in accordance with" the form, and therefore not the form itself meets the requirements of the rules. Wood J went on to say that use of a document other than the form could only be acceptable in exceptional cases which will be extremely rare. He indicated that if one of the forms was not used the alternative document "will need to indicate the efforts made to acquire" the forms, identify the parties, identify the decision and the tribunal making it, and state sufficiently defined grounds of appeal. The passage was quoted in this case by the industrial tribunal. It would not be appropriate to comment on procedural rules which are not directly relevant in this case. But I have found little assistance in the decision in dealing with the issue before me. Similarly I have found little assistance in Wood J's opinion in Gateshead Metropolitan Borough Council. If an alternative to a regulatory form is permitted, then, in my opinion, it is permitted, and one would require provision in the rules limiting the scope for use of the alternative before one could say that it would be acceptable only in rare and exceptional cases, or that the appellant would require to show that he had made efforts to find the specified form and failed. In other respects, the specification suggested by Wood J is clearly required in the context of an appeal under the Employment Appeal Tribunal Rules. The employment appeal tribunal must know the identities of the parties, and of the tribunal appealed against and so on. But the position may be very different where the only possible parties are the appellant company and the Board, as here, and where the Board is the exclusive conduit by which an appeal can reach the industrial tribunal.

The notice of assessment issued to the company contained notes for the guidance of those assessed to levy. The particular notes used in the present case were inaccurate in some respects. Some of the regulations referred to had already been superseded at the date of the assessment. But no point was taken on this before the industrial tribunal or in argument before me. The notes make it clear that an appeal lay to an industrial tribunal. They refer to the forms of notice and where they might be obtained. And they make it plain that the notice of appeal should be sent to the Board. In her reasons, the chairman of the industrial tribunal says:

In Melon v Hector Powe Ltd 1981 S.C. (H.L.) 1, at page 6 Lord Fraser of Tullybelton said:

In this case these are the only possible questions. It is not clear whether the industrial tribunal followed the decision of Wood J. in Martin to any material extent, despite discussing the case. In the passage quoted above the question is treated as one of fact applying a straightforward test of "substantial" compliance with the regulatory requirements. In my opinion that was the correct approach, and the decision cannot be criticised as failing in the application of the correct test. There was no error of law in the approach. Nor can it be said that the decision was one which no reasonable tribunal could properly have arrived at. Some of the requirements of the rules appear to have little or no point. Since any appeal is necessarily communicated to the Board, and the notes to the assessment indicate that the appropriate appellate body is an industrial tribunal, the only purpose in addressing the appeal to the secretary of tribunals can be to impress a stamp of formality on the document and to distinguish it from a request for review or some less formal procedure. That objective could be achieved in many ways, such as by the terms of the letter in this case. The procedures triggered by receipt of the notice of appeal, set out in rule 3, empower the Board to require additional information of the appellant. Deficiencies may be made good in the course of these procedures, and there appears to be no reason to construe restrictively the Board's powers. If the requirement that the document be in duplicate is a mandatory requirement, it is difficult to understand why it should be so, and, if it is, why failure to sent two copies of an otherwise good notice of appeal should be beyond remedy. One would be surprised to learn that the document was not reproduced many times in the course of any appeal. However, there is no general dispensing power. There were deficiencies, and the tribunal was entitled to reach the view that they had the consequence that the letter was not substantially in accordance with the form.

As matters developed, it appears that the appellants themselves did not consider the letter of 30 January, 1995 to be a sufficient notice of appeal. The Board responded to the letter on 31 January, inter alia extending the time for a formal appeal to be made. On 1 February, 1995, the appellants asked for the necessary paperwork to submit a formal appeal. The appropriate forms were sent on 2 February, and the appellants were informed that if they wished to proceed with an appeal they should complete two copies of the appeal form and return them to the Board within one month of the date of that letter. That did not happen for the relevant year, and the circumstances surrounding the course which was followed lie behind the second ground of appeal argued before me. I was informed that there is an outstanding appeal for the following year which may in due course resolve the issue of principle between the parties.

The second contention was that, esto the industrial tribunal had correctly held that the letter of 30 January did not constitute a timeous notice of appeal, there had been an error of law in holding that the Board had not by their actings, and in particular by their letter of 1 March, 1995, granted an indefinite extension of time for making an appeal.

The Board's letter of 31 January proposed an alternative to appeal. The letter said:

The letter also contained a statement of the Board's understanding of the scope of the appellants' operations, and of the basis of the official view that the appellants were liable to levy.

Having taken the initial steps towards a formal appeal already mentioned, the appellants wrote to the Board on 28 February:

On 1 March, the Board replied:

and made initial proposals for a review.

Before the industrial tribunal it was contended that the Board had acted improperly in a number of respects. Those submissions were not repeated before me. However it is clear that a situation of considerable confusion was created in this exchange of letters. The appellants were invited to consider review "before" taking the formal appeal route. There was no suggestion in the Board's letter of 31 January that review was an alternative which excluded appeal. On the contrary, despite the use of parentheses, one would have had little difficulty in understanding a view that the assurance that review would not affect the right to appeal at a later date was quite general. Read in that context, it is difficult to understand the view expressed in the Board's letter of 1 March that the appellants' letter of 28 February amounted to an abandonment of the right to appeal rather than a postponement of formal proceedings pending review. However, it is clear from the correspondence which ensued that the Board took that view, and that the appellants failed to respond in a way which involved any challenge of it until late in 1995.

Before the industrial tribunal it was apparently agreed that regulation 9 of the Levy Order provided that an extension of time for appeal could be granted by the Board for up to four months, and that provided that application were made within the current permitted time a further extension could be granted for any period not exceeding four months at a time. The chairman concluded from the terms of regulation 9(3) that any application to the industrial tribunal had to be made while there was a current period for appeal. The decision proceeded on that basis. Before me it was agreed that the view agreed in argument before the industrial tribunal was wrong. It followed that the industrial tribunal was invited to deal with the application on an erroneous view of its jurisdiction.

Having regard to the terms of regulation 9 there is, in my opinion, an unqualified right of appeal within one month of service of the assessment notice. Within four months the Board may allow an appeal for good cause. If the Board does grant an initial period of leave, that period may be extended by the Board provided that application is made before the expiry of the then current time. In my opinion there is no justification for the view that the Board is restricted at this stage to a period of four months, nor indeed to any other fixed period of time. The expression "such further period or periods" is not qualified, and ought to be construed so as to make the best sense possible. There are situations, such as an extensive review, in which it would make perfectly good sense for the appeal process to be delayed until it is seen whether a formal appeal is required. An extension expressly made until the review was completed would, in my opinion, be a period sufficiently defined for the purposes of the provision, and I can see nothing in the language or structure of the provision to a contrary effect. When one comes to the powers of the tribunal, there is greater difficulty. The tribunal's power arises only if the Board "shall not allow" an extension. But there is no time limit specified unless it be in the expression of the tribunal's powers as "the like powers" as those available to the Board. However that would make no sense in general. If the issue between the would be appellant and the Board arose during the initial period of one month the person assessed would be entitled to apply for an extension under regulation 9 (2) up until the end of the period. At that point he would not know of the Board's final position. If the application were refused there would be no scope for an application under regulation 9 (3) if the same time limit applied to that application. Similarly, on refusal of an extension applied for at the end of a four month extension under regulation 9 (2), the tribunal application would be practically impossible. One would not know until the expiry of the current period whether it was the last. There is no practical purpose in requiring an application to the tribunal before the Board's jurisdiction is exhausted. Indeed it must be at least questionable whether such an application would be competent since there is no restriction on the number of applications that can be made to the Board during any current period. However, if that be so, then there is no time limit on the initial application to the tribunal, and the only pre-requisite of a valid application to the tribunal is that the Board should not have allowed an application for extension. In my opinion that is the preferable view. It confers on the tribunal a wide discretion whether to grant any extension, and so permits the tribunal to have regard to the circumstances in the widest sense. It is implicit in this view that the Levy Order does not define procedural requirements restricting the industrial tribunal's jurisdiction to entertain an application for extension of time to appeal. However industrial tribunals are accustomed to the exercise of wide discretionary powers, and the lack of restrictive regulations is not of any necessary significance.

It follows that the tribunal's view in this case of the general scope of its powers was wrong in law. There was no restriction of the kind relied on. The appellant applied to the Board for an extension of time for appealing by letter dated 6 November, 1996. That application was not allowed: the Board did not reply to the letter prior to the application to the industrial tribunal. In the circumstances, the tribunal having failed to address the correct question, albeit with the encouragement of the parties, this appeal will be allowed, and the application will be referred back to the tribunal for re-consideration.

Since the question is essentially within the discretion of the industrial tribunal it is not appropriate that I should comment in any way on the merits of the appellant's application for extension of time.