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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Akhtar v Parsons Precision Ltd & Ors [1999] UKEAT 1486_98_2806 (28 June 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1486_98_2806.html Cite as: [1999] UKEAT 1486_98_2806

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APPEARANCES

 

For the Appellant	MR P WARD (of Counsel) Messrs A Dua & Co Solicitors 51a The Green Southall Middlesex UB2 4AR
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRSENTED


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Mr Akhtar against the Registrar's refusal to extend time so as to enable his Notice of Appeal to be accepted. He wishes to appeal from a tribunal decision, which was promulgated on 7^th October 1998. Following a four-day hearing the tribunal unanimously dismissed his complaint of race discrimination and unfair dismissal. Time for appealing to the Employment Appeal Tribunal dates from the date when the decision of the tribunal under appeal was sent to the parties and the date when the decision was sent to the parties was 7^th October 1998. The Notice of Appeal in this case was received at the Employment Appeal Tribunal on 11^th December 1998 and was thus 23 days out of time.

1. There is no doubt that the reason why the Notice of Appeal was not received in time was because it had been sent to the wrong place. It had been sent to the Employment Tribunal rather than to the Employment Appeal Tribunal.
2. It was sent to the Employment Tribunal on 16^th November 1998. It was only just within time because time expired on 18^th November 1998. It was forwarded and received by the Employment Appeal Tribunal on 11^th December 1998.
3. The appellant was represented by a Mr Ward of Counsel. In an able submission he invited us to consider the question – how are the interests of justice best served in this case? He correctly drew my attention to a decision of the House of Lords in the case Thompson v Brown [1981] 1 WLR 744, particularly to the passage in Lord Diplock's judgment at 750E – 751A. In that case the House of Lords set out the reasons why an action against the solicitors was not an effective substitute in a case such as they were dealing with for the claim made against the party responsible for the damage. By analogy he points out that if the appeal cannot proceed, the appellant, Mr Akhtar, will have a claim in damages for negligence against his former solicitors who made the mistake of sending the document to the wrong place, but that such a remedy was difficult to pursue having regard to the question that the Court in such a case would have to answer, namely - what value was there to be attached to the appeal which was being advanced. If the Court came to the conclusion that the Notice of Appeal was inevitably bound to be dismissed at a preliminary hearing, the chance which was lost by the negligence would have a small, if any, value.
4. Mr Ward accepted that the correct question for the Court, applying the principles of The United Arab Emirates v Abdelghafar [1995] IRLR 243, firstly, required the Court to ask what the explanation was for the delay; secondly, did it provide a good excuse for the delay; and thirdly, are there circumstances which justify the EAT taking the exceptional step of granting an extension of time.
5. I find that the explanation for the default was that which I have been provided with, namely carelessness on the part of a member of staff no longer employed by the firm of solicitors who were acting in the matter; that the document would have been received by the Employment Appeal Tribunal in the normal course of post on the last day for the time for appealing to the Employment Appeal Tribunal. It seems to me that it is the responsibility of the legal advisers in a case such as this to ensure that the Notice of Appeal is delivered correctly to the correct address. It was careless of them not to have done that. Although mistakes do happen, I am bound to say that I do not consider that the explanation which I have been provided with in any way excuses the delay.
6. Mr Ward raised the possibility that had a member of the tribunal staff appreciated that this was a Notice of Appeal which they should not have been receiving and had reacted that minute on receipt and contacted the Employment Appeal Tribunal, technically the appeal might have been within time.
7. I quite accept that, hypothetically, that might have happened. But the consequence of sending an appeal to the wrong place is likely to be that the appeal will be out of time.
8. I have looked at all the circumstances of the case, including the form of the Notice of Appeal and the decision of the Employment Tribunal under appeal, and I have to say that I am not persuaded, in all the circumstances, that this is a case where time should be extended. I am of the view that the Notice of Appeal was unlikely to pass through the preliminary hearing stage, although that is very much a preliminary judgment on the merits of the matter, which plays little part in the discretion which I have sought to exercise.
9. In my judgment, the Registrar's decision in this case was correct and I dismiss the appeal.