Harper & Anor v Hopkins (appeal from order : out of time) [2009] UKEAT 0145_09

HIS HONOUR JUDGE McMULLEN QC

1. This is an appeal from the decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellants. I will refer to the parties as the Claimant and the Respondents.

2. The appeal itself is an appeal by the Respondents in those proceedings against a judgment of Employment Judge Whittaker, registered with reasons on 21 November 2008.

3. It was a refusal to allow an application to review a judgment given without reasons on 30 September 2008, signed on 13 October 2008. That followed the hearing on before a three person Tribunal where the Claimant was present but the Respondents did not attend.

4. That in itself followed a judgment issued on 15 January 2008 in which judgment by default was given by Employment Judge Hepworth sitting at Leeds and claims of the Claimant under various heads succeeded.

5. In a letter which accompanied that judgment on 16 January 2008, there is reference to the judgment booklet which was sent to the parties.

6. On 16 January 2008, a decision was made by Employment Judge Hepworth that the response had been received out of time and would not be accepted. That therefore paved the way for the hearing on 30 September 2008 in which the Claimant was awarded almost £10,000 in respect of compensation for unfair dismissal under section 38 of the Employment Rights Act 1996.

7. In this case, I have heard evidence direct from Mr Harper and his partner, Ms Watson, who have, to some extent, been cross‑examined by Mr Hopkins. All the parties therefore appear in person. It was fair to allow Mr Hopkins to ask questions, because in effect the Respondents were giving evidence, I have listened carefully to the material which has been put before me.

8. The Registrar received a Notice of Appeal against the judgment of 21 November 2008 on 10 February 2009. She considered that to be 47 days out of time. It appears to me that the expiry of the 42 day period for lodging a Notice of Appeal would be 2 January 2009 but the difference is immaterial.

9. The Registrar considered material by way of explanation from the Respondents and from the Claimant and refused to exercise her discretion to extend the period of time beyond 42 days so that the appeal could be entered.

10. In her judgment which was accompanied by the following reasons, she said this:

“The Judgment in this matter was promulgated to the parties on the 13^th October 2008. An application for a review of that Judgment was dismissed on the 21^st November 2008. The Appellants state that their health did not permit them to file an appeal against the review decision earlier than the 10^th February 2009. Mr Harper was apparently admitted to Scarborough Hospital with gall bladder infection ‘since the new year’ although he provides no evidence of this. In any event that would have been after the time for appeal had expired. Ms Watson sustained minor injuries in September and relates that she has also had an infected gall bladder and a lung infection. He doctor confirms that she became unwell in January 2009, after the expiry of the appeal period. Unfortunately neither Appellant explains why it was not possible within the appeal period to prepare and file their appeal, particularly as they had sought the advice of a firm of employment specialists. The generous period of six weeks is fixed so that unpleasant eventualities can be dealt with and that even the most disadvantaged Appellant has time to prepare and lodged documents. Lord Justice Keene stated in WILKINSON V REID WINES 1992 LTD [2007] EWCA Civ 964 ‘Any would-be appellant to the EAT is expected to act with dispatch and not allow weeks to pass before he gets his act together.’

The Appellants would have received a copy of the Judgment booklet which advises ‘you should get your appeal to the EAT well before the end of the 42 day period.’ It also provides guidance on the documents to be included in the appeal. They do not appear to have had regard to that advice. In JURKOWSKA V HLMAD LTD [2008] EWCA Civ 231 Lord Justice Rimer stated ‘litigants are not entitled to expect rules of practice to be re-written so as to accommodate their own negligence, idleness or incompetence’.

The Appellants became unwell after the expiry of the appeal time limit. Although the Court has every sympathy with illness it does not accept that between the two Appellants, assisted by their representatives, that it would not have been possible to file an appeal within the stated time limit. The fact that they did not provide the relevant documents for his appeal merely extended the period that they were out of time.”

11. On the basis of that material no extension was given.

12. The relevant provisions of law and practice are set out in those authorities and the judgment I gave in Muschett v Hounslow London Borough Council [2009] ICR 424. Since that time, the Court of Appeal decided Jurkowska v Hlmad Limited [2008] EWCA CIV 231, I have also decided Bost Logistics v Gumbley UKEATPA/0013/08.

13. The EAT rules require a Notice of Appeal and all supporting documents as prescribed by the Practice Direction to be lodged within 42 days of the date the judgment is sent to the parties. The 2004 Practice Direction indicates what documents must be included and the 2005 practice statement makes clear these are prescriptive provisions and there is no special treatment on litigants in person.

14. An appeal lies from the Registrar to a judge, in effect a fresh hearing sometimes with live evidence. I make up my own mind on the basis of all the material.

The facts

15. The Respondents are a couple who run a hotel in Scarborough. It is quite a substantial operation and can hold, for example on New Year’s Eve, 170 people. The Claimant was employed there.

16. After the judgment on 30 September 2008, which I hold was sent to the Respondents on or about 13 October, the Respondents decided to enlist the services of Peninsula Business Services Limited, an organisation well known for providing advice, and according to the documents before me they were instructed shortly after 13 October 2008 for they are writing to the Employment Tribunal by 22 October 2008. Reasons are given on behalf of the Respondents in respect of an application for a review.

17. The judgment was perfected on 21 November 2008 and reasons are given rejecting the application for review. For the moment those are not material matters for me.

18. According to the evidence which I accept from Mr Harper, Peninsula wrote on 15 December and it was received on 20 December by Mr Harper, indicating that the review had been unsuccessful, enclosing a copy of it to them.

19. On 23 December, Peninsula wrote again indicating that they seemed to have come to the end of their responsibility and there may have been a phone call between Mr Harper and Peninsula about that time or at some time later.

20. In any event, Mr Harper knew there were 42 days to appeal. He assumed it was from the date that he was notified, 20 December 2008, and he made a decision at that time to put the matter aside until the early New Year, it being a very busy time for his hotel and all the staff together with Ms Watson.

21. Sadly, before that happened on 29 December, he was taken seriously ill and into hospital. I accept his evidence that he was there until 7 January 2009. When he came out he was still ill from his ordeal and did not decide to submit a Notice of Appeal until he wrote it on 5 February 2009. It was lodged on 10 February 2009.

22. Ms Watson also suffered illness during the course of January 2009. I have seen a letter from Dr Newman indicating that there had been a protracted period of illness. It does not say when it began. I take it she was not ill until some time in early January. There is no indication that she was ill before then.

23. There is no medical evidence as to Mr Harper’s condition but I accept his evidence to me.

24. The Notice of Appeal was plainly out of time. The central question is whether discretion should be exercised. This is a very wide discretion. I have made it clear in Muschett and in a number of other cases I have decided, see Bost for example, that I would not be inclined to follow Burton P’s judgment in Woodward v Abbey National PLC [2005] UKEATPA/0534/05/SM as requiring a finding of what was impossible.

25. As I have cited above, the Registrar considered herself bound to apply this statement from Woodward. It is plain from Abdelghafar and Aziz that even where there are reasons such as delays in funding, delays in obtaining legal aid, delays in advice, that may not be sufficient. It is certainly no excuse for leaving the matter until the eleventh hour or in the case of both of these two appeals, I have now found the thirteenth hour.

26. The reason why I am not persuaded to follow that is that I have looked in vain for a statement in either Abdelghafar or Aziz for a requirement that an Appellant show that it was impossible to put in a claim. I have already made it clear in Muschett that this not a jurisdiction as is the Employment Tribunal where issues of reasonable practicability arise. The discretion is entirely open. Of course it must be exercised judicially but there is no corresponding provision requiring an Appellant to show through the entirety of the six weeks that it was not possible or not practicable.

27. The circumstances in which courts will allow the exercise of discretion are many but with respect to the Registrar, I hold that she is wrong to have followed that guidance from such an authoritative source.

28. I have pointed out that in the subsequent case of Jurkowska, there is no reference to Woodward, nor is there any reference to the hurdle facing an Appellant making the claim impossible or impracticable, although in many cases evidence will be to that effect. I have already explained in Muschett that an analytical approach should be taken to the whole of the period of the six weeks and I do that in this case.

29. I am prepared to accept that until the letter was sent by Peninsula, the Respondents did not know of the outcome of their application for review. They may wish to discuss this with Peninsula and ask Peninsula to explain why it took until 15 December for Peninsula to write to the Respondents. They were at that time represented. This period of time in itself would be running against the Respondents. I do not accept as an excuse for not putting in a Notice of Appeal that Peninsula has sat on the judgment without telling them.

30. This is an explanation as far as the Respondents are concerned but it is not a sufficient excuse in respect of that first period of time. The second period of time is when the Respondents did know.

31. On the evidence I have heard, there was no intention to meet the deadline. Mr Harper was mistaken and he had plainly not considered the clear terms of the judgment booklet which says that time will run from the date the judgment is sent by the Employment Tribunal and his own decision to put this off until after Christmas was a decision between two competing priorities: running the hotel at a busy time or appealing against the judgment. He chose the former.

32. Sadly, on 29 December, he became ill but I do not find that was the reason why the Notice of Appeal was not put in. The reason was his decision to put it off until the New Year. Even so, with the deadline of 2 January, he would have been filling it in some time after deadline expired. Even bearing in mind his own mistaken understanding, he was still too late when he signed the Notice of Appeal on 5 February 2009, and when it was lodged on 10 February 2009.

33. It must be recalled that the Respondents are jointly and severally liable in this case. I accept that Ms Watson had some illness in January. I do not accept that that was so debilitating that she could not have appealed.

34. But in any event, on the evidence I have heard, this did not occur until sometime into the New Year when the deadline had expired. Up until then, apart from the very taxing problems of running the hotel at a busy time, compounded in the last few days by the admission of Mr Harper to hospital, there is no reason why she should not have entered a Notice of Appeal.

35. For those reasons therefore, I hold that although the Registrar has focused upon what the Respondents were able to do, nevertheless there were periods when there was no impediment to an appeal being filed either by Peninsula, by Peninsula taking instructions, or by Mr Harper or Ms Watson.

36. For those reasons although I have some sympathy with Mr Harper and Ms Watson in that they have not had a trial, the only issue for me is as to the procedural effect of the late Notice of Appeal and I will dismiss the appeal.

37. I would like to thank all three parties for coming today and I hope there will be nothing to prevent payment of the money which the Tribunal has found to be due to the Claimant.

38. I refuse permission to appeal because it has no prospect of success.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harper & Anor v Hopkins (appeal from order : out of time) [2009] UKEAT 0145_09_0608 (6 August 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0145_09_0608.html Cite as: [2009] UKEAT 145_9_608, [2009] UKEAT 0145_09_0608

United Kingdom Employment Appeal Tribunal