APPEARANCES
| For the Appellant |
NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT |
| For the Respondent |
NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT |
HIS HONOUR JUDGE PETER CLARK
- The purposed Appellant, Mr Neville Billson, was a director of a company, Adman Ltd trading as Keytech. That company appears to have found itself in financial difficulties. At all events two people who worked for Adman, the Applicants Jonathan Mole and Marvin Rufus claimed to be owed outstanding wages, as appears from their Originating Applications presented to the London (South) Employment Tribunal in April 2002. Both named Mr Billson as the Respondent in those applications.
- The complaints were heard by a Chairman, Mr John Warren, sitting alone on 27 August 2002. Neither the company nor Mr Billson appeared or were represented. By a Decision with Extended Reasons dated 17 September, the Chairman made awards in favour of both Applicants against Mr Billson personally.
- On 25 September Mr Billson instructed a solicitor, Mr Christopher Kilroy, as appears from paragraph 2 of Mr Kilroy's witness statement in these proceedings dated 7 November 2002.
- On 9 October 2002 Mr Kilroy submitted a review application to the Employment Tribunal. That application was refused by the Chairman by letter dated 10 October on the basis that it was out of time. The time limit under Rule 13 (4) is 14 days from the date of promulgation of the original decision.
- As Mr Kilroy deposes, he was aware of the 42 day time limit for appealing to the EAT. On 24 October he sent a draft Notice of Appeal to an agency for typing. I pause to observe that the 42 day time limit expired on Tuesday, 29 October 2002.
- It is his evidence that on 25 October, a Friday, he received the typing back from the agency and instructed his secretary, Rosalind Keen, to finalise the paper work and then send it by fax and first class post to the EAT. That would ensure that the appeal was in time.
- Ms Keen tells me, in her witness statement, paragraph 3, that she did fax a covering letter dated 25 October, the Notice of Appeal and Decisions of the Employment Tribunal dated 22 August and 10 October, together with the review application of 9 October. She also sent that documentation by first class post, herself posting the package at a post box in Corporation Street, Birmingham, at about 5.30 p.m.
- The difficulty is that there is no record from the solicitors of faxing, nor at the EAT of receiving a fax on 25 October. In these circumstances I am not satisfied that good service was effected by fax on 25 October. Had I been so satisfied, the appeal would have been lodged in time.
- Worse was to come. I have looked at the EAT file and have seen the envelope posted by Ms Keen. It is date-stamped 28 October by the Post Office; however, it appears that insufficient postage was paid. A single first class stamp was affixed. A surcharge of £1.07 being additional postage of 27p and a handling fee of 80p has been charged. That may explain why the package did not arrive at the EAT until 30 October, as the EAT date-stamp shows. It was one day out of time.
- In these circumstances, the Registrar refused the Appellant's application for an extension of time by an order dated 6 January 2003. In giving her reasons for that order, against which this appeal before me is now brought, the Registrar referred to the observations by the Court of Appeal in Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111, approving Mummery P in Abdelghafar v United Arab Emirates [1995] ICR 65; time limits for appealing to the EAT will only be relaxed in rare and exceptional cases where the EAT is satisfied that there is a full, honest and acceptable explanation of the reasons for delay. As Mummery P put it in Abdelghafar, there must be a good excuse. Extensions have been refused where the appeal is only one day out of time (as here), see Duke v Prospect Training Services Ltd [1988] ICR 521, Popplewell P. Parties are advised not to leave service of the Notice of Appeal until the last few days of the 42 day period. If they do they run the risk of delay in the delivery of post.
- I turn to the present appeal. The Appellant does not appear and is not represented today; instead he relies on written representations by his solicitor, Mr Kilroy. The final version of his Skeleton Argument now before me has been sent under cover of a letter dated 20 March.
- I have no reason to doubt the factual accounts given by both Mr Kilroy and Ms Keen in their witness statements. Does that explanation provide a good excuse for the delay? In my view it does not, for the following reasons:
(1) There is no record of the fax transmission on 25 October by Ms Keen, either from the sender or the EAT. It is suggested that the EAT fax machine was defective; reliance is placed on a later fax transmitted by Kilroys, recorded by them as going out at 14.19 hours on 1 November 2002, but recorded by the EAT as received at 21.21 hours on 30 October, a time when, according to Mr Kilroy, his offices are closed. However, this is nothing to the point. The responsibility to ensure the necessary documentation is received by the EAT within time lies with the Appellant and his advisers. It was necessary for Ms Keen to check on Monday 28 October or even Tuesday 29 October that the documents had been received; she failed to do so.
(2) Reference is made to the normal and expected result of posting a letter in Consignia Plc v Sealey [2002] IRLR 624. That case was concerned with the reasonable practicability test for lodging Originating Applications complaining of unfair dismissal, a different test from the present. However, in this case the wrong postage was applied thus failing to ensure next working day delivery.
- In all these circumstances I am not persuaded that any good excuse for the delay in lodging this Notice of Appeal has been made out and accordingly this appeal is dismissed.`
