Appeal No.	 EAT/860/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

THE POST OFFICE	APPELLANTS

MR K CLARKE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J TAYLER
(of Counsel)
The Solicitor
The Post Office
Impact House
2 Edridge Road
Croydon CR9 1PJ	
For the Respondent	MR T R NAYLOR
(Employment Rights Adviser)
Personnel Advisory Services
49 Warrington Road
Cuddington
Cheshire CW8 2LN	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal against the Registrar’s refusal to extend time for the lodging of a Respondents’ Notice of intention to defend an appeal.

	The Post Office were given leave to proceed to a full hearing in relation to an appeal which they have lodged against a Tribunal decision.  They were held to have unfairly dismissed Mr Clarke.  He won before the Industrial Tribunal and therefore is the Respondent to this appeal.

	The Employment Appeal Tribunal sent a letter to the Respondent’s adviser, Mr B. Naylor from Personnel Advisory Services, informing him that the matters raised in the Notice of Appeal had been allowed to go forward for a full hearing and, in accordance with the rules, a sealed copy of the Notice of Appeal was served.  It was made perfectly plain. that:

“You are a Respondent to the appeal and if you wish to oppose it you should complete a copy of the enclosed Form 3 and return it so as to reach this Office by not later than 25th December 1997.”

There was no response to that document.  

	On 31 March 1998 the Employment Appeal Tribunal wrote to Mr Naylor again, referring to their letter of 11 December and enclosing another copy of the Notice of Appeal.  Mr Naylor was invited to let the EAT know within seven days of the date of the letter whether he intended to resist the appeal and enter an Answer and that if so, the Answer when lodged should be accompanied by an application for an extension of time.  That was done the following day by Mr Naylor.  Effectively, the Respondent employee wishes to say that the Industrial Tribunal’s decision was right for the reasons set out in its extended written reasons.

	The application for an extension of time was considered by the learned Registrar who refused it.  Accordingly, there has been an appeal to me, brought by Mr Naylor on behalf of his client, saying in effect that through a combination of personal factors, including ignorance of the position in the Employment Appeal Tribunal of a Respondent, oversight, and matters of that sort, that the letter of 11 December had been overlooked.

	It was submitted to me by Mr Naylor that there would be no prejudice whatever to the Post Office because they will have to say, at the full hearing of the appeal, why it is that the Industrial Tribunal decision was wrong and the Employment Appeal Tribunal will, therefore, have to apply its mind to the very issues which would be raised by the Respondent, if they were allowed to participate at the appeal.  Accordingly, he says that this is a case where I should exercise my discretion.

	On behalf of the Post Office Mr Tayler says, in effect, that prejudice is not really the issue here or, if it is, it is not prejudice to the Post Office, it is whether Mr Clarke will suffer any prejudice if I were not to extend time.  He says that Mr Clarke would not be prejudiced if I were to refuse to extend time, for precisely the reason advanced on Mr Clarke’s behalf by Mr Naylor, namely that the Employment Appeal Tribunal will, in any event, have to consider the matters which are going to be relied upon at the full appeal, if allowed to do so by Mr Clarke through his representative.  He correctly points out that the Employment Appeal Tribunal’s rules are clear, that the letter which was sent accompanying the Notice of Appeal clearly specified what was required and that this Court should not tolerate breaches of its rules for no good reason, and that Mr Naylor had failed to put forward any good reason justifying the late notification of an intention to respond.

	I have not found this at all easy.  The discretion to be exercised in such cases is a fine one, having regard to all the circumstances.  Tribunal rules are to be obeyed and I want to make it perfectly plain that, in future, I shall expect of Mr Naylor a much higher standard of performance in compliance with our rules than he has shown on this occasion.  But having regard to all the circumstances and in particular, the reality of the position, which is that the very issues which Mr Clarke wishes to raise through Mr Naylor will have to be considered, it seems to me that I can extend time and allow the appeal.  But it does seem to me, having heard Mr Tayler’s application for costs, that it would be entirely unfair for me to exercise my discretion and then to fail to make an order for costs under rule 34.  I take the view that Mr Naylor has acted unreasonably in the conduct of the proceedings by not complying with our very explicit requests.

	In those circumstances I exercise my discretion to make an order for costs.  Under rule 34 (2) I have power to assess the sum.  In all the circumstances I assess the amount of costs at £150 which I regard as a reasonable sum, having regard to the issues in this matter.

	Accordingly, the appeal will be allowed.  The Respondent’s letter of 1 April to stand as the Notice of Appearance and I direct that the sum of £150 be paid by Mr Clarke to the Post Office within 14 days by way of costs.  As between Mr Clarke and Mr Naylor, who pays that sum, that is a matter for them, but the person I must make an order against is Mr Clarke.