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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Embling v General Municipal Boilermakers Union [2002] EWCA Civ 108 (22 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/108.html Cite as: [2002] EWCA Civ 108

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON HULL
COMBINED COURT CENTRE
(HIS HONOUR JUDGE CRACKNELL)

		Royal Courts of Justice Strand London WC2 Tuesday, 22nd January 2002

Tuesday, 22nd January 2002

1. LORD JUSTICE MANCE: This is an application by the claimant dated 20th June 2001 for permission to appeal out of time an order of His Honour Judge Cracknell itself refusing permission to appeal out of time an order of District Judge Robertson dated 21st October 1999 dismissing the claimant's action under Part 24 of the Civil Procedure Rules.
2. His Honour Judge Cracknell's order states that it was made on 14th February 2001, although drawn on 5th July 2001. The matter was certainly argued before him on 14th February 2001 but the transcript at Tab 7 (which I have read) states at bundle page 45F that he reserved judgment, and the claimant says that his actual undated judgment was only received by the claimant on 8th May 2001. Even so, the claimant is out of time for an appeal against His Honour Judge Cracknell's judgment. That, however, is a matter that pales into some insignificance when one turns to the delay between the order of District Judge Robinson and the appeal to His Honour Judge Cracknell. The application to appeal to His Honour Judge Cracknell was only made by notice dated 21st December 2000, in other words some 14 months after the order appealed. It was the magnitude of this delay that His Honour Judge Cracknell had to consider and which led him to refuse permission to appeal against District Judge Robinson's order. I now have to consider whether to grant permission to appeal against that refusal. I consider this on the basis that this is not a second appeal within the meaning of section 55(1) of the Administration of Justice Act 1999 for the reason that His Honour Judge Cracknell did not hear an appeal, but refused permission to appeal, and that the matter he decided was different to the matter decided by District Judge Robinson: see Foenander v in a Bond Lewis & Co, decided in this court on 23rd May 2001 of which the office has given me a copy, paragraph 17. Nonetheless, the claimant/applicant in applying to me for permission to appeal against the refusal to extend time must not only obtain an extension of time for an appeal from His Honour Judge Cracknell, but must also show a real prospect of success upon, or some other compelling reason for, such an appeal from His Honour Judge Cracknell.
3. The matter goes back to November 1990 when the claimant took early retirement from British Steel, as it was. He was a member of the defendant's union and had apparently been off work for some time following an unfortunate accident. Only on 21st January 1997 did he begin this action alleging that there had been negligent advice given and negligent representation by officials of his union back in 1990 and 1991. The writ relates such negligence both to his termination of his employment and to an application to an industrial tribunal in March 1991, but the statement of claim served on 29th May 1997 confines it to the former. It is alleged that the claimant was not informed about terms of an agreement which had been reached between British Steel and the union to reduce the number of employees by dismissing some twelve for redundancy; and second, that the claimant was not advised that he was unlikely to be dismissed for incapacity. He says that this was unlikely, in fact, because (a) there were other employees with longer absences from work than him; (b) his medical prognosis was not poor; (c) he was eligible by seniority to apply for voluntary redundancy and (d) any dismissal would have been likely to be regarded as a sham. It is further alleged that the union officials knew or ought to have known that he would be better off to remain in employment, in which case he would either have been dismissed for redundancy or been able to swap jobs with another employee in another department who wished to apply for but was not eligible for, voluntary redundancy, a procedure known as cross-matching.
4. The critical meeting attended by the claimant and his advisers and representatives of British Steel is pleaded as being on 2nd November 1990.
5. The union denied these contentions by defence served 26th November 1997. It pointed out that volunteers for redundancy had been put forward by the union by a list dated 5th July 1990. This did not include the claimant, although there is subsequent correspondence in the bundle in which it appears that British Steel suggested that it might in some respects wish to seek to revise the list. The defence further averred that the claimant was informed of the agreement in principle for some redundancies (see paragraph 7) and it alleged that there were no vacancies for volunteers for redundancy in the claimant's work area at the material time (see the same paragraph). It alleged that the union did not know or advise whether the claim would be better off if he could obtain voluntary redundancy, and that he was advised to find out what his early retirement figures would be. It alleged that the union believed that the purpose of the meeting on 2nd November 1990 was simply to ascertain whether or not the claimant was fit enough to return to work, but that at the meeting British Steel put four possibilities: (1) that he return to work; (2) that he return to work on light work or modified duties; (3) that he take early retirement on grounds of ill-health or (4) that he be dismissed on grounds of incapacity. The first two were, the union pleads, declined by the claimant. The union alleges that only subsequently, probably at a meeting with British Steel on 7th November not attended by the union, at which a doctor medically examined the claimant, the claimant decided to accept early retirement.
6. As to what is said in that defence in relation to the agreement for redundancies, the reply asserts that the claimant was unable to obtain a copy of any such agreement and was therefore unaware of its terms until March 1995. The reply served on 19th December 1997 did not, however, take any specific issue with what was said about the letter dated 5th July 1990. That seems to me of some note, having regard to the emphasis which the claimant now places on that document before me. He says that it is essentially a false document contrived to deprive him, or at least having the effect of depriving him, of redundancy by ignoring his proper seniority for redundancy purposes.
7. The applicant's bundle before me includes what are described as transcripts of discussions with relevant union officials, Allan Southwood and Jeff Lonsdale prior to November 1990. These indicate that the claimant was generally aware that an agreement regarding redundancies had been made, even though he may not have had, and says he did not have, an actual copy, and that this agreement was referred to as extending to eleven individuals, two of them office staff, and the rest ordinary employees like the claimant. The difference between this figure of eleven and the figure of twelve appears unlikely to be significant. The documents also indicate that the union was not at that stage giving any firm advice. The union suggested, at a date which is unclear, that the claimant consider putting his name forward for redundancy; but that suggestion was qualified by pointing out that the claimant should ascertain the terms for early retirement since he could be better off under them than if he took redundancy. The fact that the suggestion was made at all appears to me of some significance. If it was pre-July 1990 it could explain why the claimant's name did not appear on the list of 5th July 1990; but assuming that it was post-July 1990 it would tend to suggest that that list was not final.
8. Further, in October 1990, the claimant is reported as asserting that, applying a conventional approach of looking at age plus years of service, he should be top of the list for redundancy; although he then qualified that by apparently accepting that Roy Lee was in front of him because of his age. A transcript of part of the meeting on 2nd November 1990 records the claimant as asserting that Alan Southwood had offered him redundancy because of the eleven positions going, to which British Steel's reply, through a Mr Pattinson, was that the claimant would be foolish to hang on in the hope of redundancy since British Steel did not now foresee anything happening within a year, and that British Steel would anyway "need to deploy two or three before your name comes up on the list". Before me the claimant said that British Steel was thereby saying that his name would be at a high position, position three or four, for redundancy, but that there were unlikely to be any redundancies.
9. Before me the claimant also appears to put his case in a somewhat different way to that pleaded. He says that contrary to what he had been led to understand at the time, for example on 2nd November 1990, British Steel had in fact declared a number of people redundant. British Steel therefore been lying on 2nd November 1990. He also produces a note purportedly made by a Mr Peter Whyte of the union on 9th November 1990 and disclosed by the union in this action on 9th December 1998, in which, according to Mr Whyte, the claimant raised with Mr Whyte British Steel's position; namely that the claimant could either take early retirement or face dismissal, and in which Mr Whyte records that he told the claimant that the redundancies had been cancelled.
10. Finally, the claimant refers me to a transcript of a conversation he himself had with Mr Peter Whyte in February 1991 in which he asked what had happened to the eleven jobs, and Mr Whyte is clearly saying, consistently with what British Steel had said on 2nd November and with what Mr Whyte noted that he said on 9th November, that although the eleven jobs were identified "at the end of the day they were not negotiated because there was no negotiation to take place because there was no reduction". The claimant's reply even at that time was that "there were eleven jobs identified but no one will come clean on it". So it is fair to say that even then he seems to have doubted the good faith of both British Steel and the union and, as I have said, before me that is certainly the way in which he emphasised his case.
11. He submits, however, that he only discovered the untruthfulness or incorrectness of what he was told in November 1990 when his solicitors, Hett Stubbs & Kemp (now no longer acting for him) interviewed others in 1998 - they were others who had left British Steel in 1990. The list dated 5th July 1990 was disclosed by the union at about the same time, again as appears, in December 1998. A solicitor's attendance note which the claimant has produced before me dated 3rd February 1999 certainly confirms that it was his case then that he had been excluded from the redundancy list because he had a personal injuries claim underway against British Steel. Before me he said that he had been searching ever since for confirmation of the falsity of British Steel's and/or the union's position. He asserts that this has now been achieved through the good offices of an MP, Mr Ian Cawsey, who, in September 2000 has procured for him from British Steel another copy of the list of 5th July 1990 under cover of a letter dated 1st September 1990. To that, however, it seems to me the following comments apply; first, the claimant has had a copy of the list itself since 1998; secondly, and contrary to the claimant's assertions before me, neither the list nor British Steel's letter dated 1st September 2000 (it is written under their new name of Corus) confirms that there were any redundancies in 1990. On the contrary, the fourth paragraph of Corus's letter speaks only of agreed earlier retirements like the claimant's for certain persons with permanent incapacity, and suggests that they were agreed on the basis that this was the best course for their particular circumstances. The claimant, however, continues to assert that there is or are further documents in the possession of the union or British Steel which would demonstrate his seniority in 1909 and his entitlement by virtue thereof to any redundancy which might have been on offer. He says that he needed and needs these further documents to pursue the action. There is now before me a bundle of documents including an application seeking permission to rely on further evidence and seeking an order for the production of the further documents which he was asserting before His Honour Judge Cracknell were essential and continues to assert before me are essential.
12. Before his Honour Judge Cracknell, Mr Pattinson, a former union official who accompanied the claimant to that hearing, asserted the existence of such documents. But it has never been accepted by the union or British Steel. If the union ever had such documents they would of course have been disclosable in 1998, and steps could then have been taken to pursue them by seeking further discovery.
13. District Judge Robinson struck out this action on the basis that the facts giving rises to it occurred more than six years before action commenced and that the claimant knew all the relevant facts in November 1990. Unfortunately the tape recorder was out of action, so that there is no proper transcript of the proceedings or of his judgment. I do not gain much, if any, real assistance from the informal notes made by two persons accompanying the claimant to the hearing before the district judge, and an untranscribed solicitor's note of the hearing is to my mind also of very little assistance, save perhaps to show that the course of argument and of judgment was by no means summary.
14. The application for permission to appeal against District Judge Robinson's order was made on the basis that "crucial evidence" existed in the form of British Steel's seniority listing for the years 1989 to 1991, which the claimant said that he was actively pursuing through Mr Ian Cawsey MP, and that this would show that the 5th July 1990 and other listing and Mr Whyte's purported note of the meeting with the claimant on 9th November 1999 disclosed by British Steel in December 1998, were forged, denying him his opportunity to cross-match and to redundancy.
15. The argument before me elicited that when the claimant refers to forgery he means false to the knowledge of the maker. That is certainly his case regarding the list dated 5th July 1990 and also a list as of March 1990 disclosed to him in 1999 (that is Tab 36 in my bundle, although I have to say that that list seems to me simply an alphabetical list, not a list of purported seniority).
16. The notice of appeal alleges that the claimant discovered the falsity of this documentation in January 2000, although, as I have already indicated, it seems to me that it was inherent in his case all along from the time those documents were disclosed that they were false. It also repeats the point made in the reply, namely that it was only in 1995 that the claimant had with the help of Mr Patterson discovered the agreement or agreements made, referring presumably to the agreement regarding redundancy in 1990. The notice of appeal further refers to large number of other documents relating to the period 1990 to 1994 as well as to correspondence in February 2000 with the union's lawyers and to extensive complaints about the conduct by the district judge of the hearing in October 1999.
17. In argument before His Honour Judge Cracknell the judge sought to ascertain whether the claimant/applicant had known the facts on which he sought to rely before His Honour Judge Cracknell. The claimant confirmed that it was his position that he knew in October 1999 that things had, as he asserts, been concealed from him: see the transcript bundle at pages 38E and 40A. He also confirmed that he had known from December 1998 that he had been, as he put it, excluded from all contractual rights: see transcript page 42F.
18. Mr Pattinson said that the seniority list had been missing "ever since Mr Embling started this affair". On this, as it appears, the claimant in fact asked Mr Cawsey to assist, leading to the reply which Mr Cawsey elicited from Corus in September 2000, which Mr Cawsey passed on to the claimant by letter dated 22nd September 2000 to which I have already referred. Corus also said in that reply that the trade union maintain seniority rankings and that it had no separate records of seniority going back to that time.
19. On the basis of this and the material before him His Honour Judge Cracknell concluded that there was no special reason for the delay in applying for permission to appeal and nothing to justify him in making an exception to the rules; in other words nothing to justify an extension of time.
20. I have to say that, having considered the matter, having heard Mr Embling's submission this morning and having taken a little time out of court time to read and reread further, I agree with His Honour Judge Cracknell. If the claimant wanted to appeal the District Judge's decision he could have done so. The appeal did not in any way depend on pursuing further material in the form of seniority lists or any other nature. It was already the claimant's case that he was eligible for seniority and he says that he knew from December 1998 onwards, or at least (according to his notice seeking permission to appeal out of time from the district judge's order) from early 2000, that the documents disclosed by British Steel were not the relevant ones, or were, as he now asserts forged, or false.
21. As to the allegation of forgery or falsity I have to say I see nothing to make this plausible. The document at Tab 36 does not seem to me a list of seniority at all; but a list in alphabetical order. As to the other documents the argument that there has been some forgery or lying seems also to have a very circular aspect. Because no other list has been produced showing that the claimant was eligible for redundancy, therefore other documents must have been suppressed; and any list which shows that he was not eligible for redundancy or not being put forward for redundancy must be forged or false. Likewise, presumably because other documents such as Mr Whyte's purported note of the conversation on 9th November 1990 do not suit the claimant's case, they must be false, or other documents must exist showing the true position. All that assumes what it has to prove. I have also to say that the lack of any pleaded response to the reference in the defence to the letter of 5th July 1990 strikes me as curious if the claimant thought that this listing put forward by the union was entirely lying. As I have said earlier in the judgment the documents indicate that he was offered the opportunity of considering redundancy (at least assuming that the conversation which is undated in the bundle before me relates to some period after 5th July 1990) although the union warned him that he might be better off pursuing early retirement, as in the event he did. I have also seen no evidence to support the claimant's further assertions that there were redundancies in 1990. That is, on the contrary, in conflict with what British Steel said on 2nd November 1990, in conflict with what Mr Whyte records that he said on 9th November 1990 and in conflict with what the transcript shows that Mr Whyte said to the claimant in February 1991.
22. The claimant's case is thus (1) that there was wide-scale misleading of him back in 1990. A the very lowest, quite apart from what I have already said about the lack of any evidence to support that case, that was a case which he could and should have pursued with dispatch if it was to be pursued at all.
23. In summary, so far as the merits are concerned, such contemporary documents and transcripts as have been included in the bundle leave me, in the circumstances, wholly unpersuaded that the claimant ever had a claim of such strength that it would now be a real injustice to refuse to permit it to continue. All the indications are that the claimant was faced with a stark choice between likely alternatives which led him advisedly to prefer early retirement to the risk of being simply dismissed. It is unnecessary to rest my decision on these considerations; but they do appear to me to reinforce the conclusion that there should be no permission to appeal here. On any view, however, this action relates to matters as long ago as 1990. It was begun over six years after those matters. Whether or not it was time-barred, it was an action relating to matters of considerable age which it was incumbent upon the claimant to pursue with diligence. I bear in mind in saying this the claimant's statements made to me regarding his ill-health, the difficulties with solicitors, which it appears he undoubtedly had while they were acting for him, and subsequent ill-health and operations for reasons going back to his original accident. It is not, however, suggested that they prevented proper procedural steps being taken. The primary basis on which the claimant puts it is that he felt it appropriate to devote energy in other directions.
24. In my view that is not an appropriate approach to this litigation. It was for the claimant to pursue any appeal against an order striking out the application on grounds of limitation and it was nothing to do with the matter to seek evidence relating to the substance of the case. The age of the matter underlies this obvious duty. Had the only matter before me been the extension of time necessary for an appeal from His Honour Judge Cracknell, that would have involved a relatively short extension and would have been most unlikely to present the claimant/applicant with a real obstacle, although there appears again to be no satisfactory explanation for the delay. However it is the delay from October 1999 to December 2000 which is, in my view, an insuperable obstacle against the background of the matter as a whole which I have stated.
25. I would therefore be prepared to treat the claimant/applicant as having been granted an extension of time seeking permission to appeal from the decision of His Honour Judge Cracknell; but I would dismiss his actual application for permission to appeal from that decision. I would also dismiss his application relating to further evidence. Even if that further evidence is however admitted - and I have looked at it and borne it in mind - it seems to me that it carries the matter nowhere for reasons which will be apparent from the body of this judgment. It relates to the further documentation which the claimant asserts must exist, and does not, therefore, affect the conclusion reached on the main application.
(Applications refused; no order for costs).