Appeal No. UKEATPA/0534/05/SM
& UKEATPA/0030/05/DZM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 26 July 2005

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
(SITTING ALONE)

DIANA WOODWARD                                                                                                  APPELLANT
ABBEY NATIONAL PLC                                                                                          RESPONDENT
(No. 2)

J P GARRETT ELECTICAL LIMITED                                                                        APPELLANT
CRAIG COTTON                                                                                                        RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL AGAINST REGISTRAR’S ORDER

	APPEARANCES

For the Appellant (Woodward)
	MR STUART RITCHIE
(of Counsel)
Instructed by:
Messrs Russell-Cooke
Solicitors
2 Putney Hill
London SW15 6AB
	
For the Appellant ( J P Garrett Electrical Ltd)	MR DAMIAN BROWN
(of Counsel)
Instructed by:
Martin Cray & Co
Solicitors
177 Edward Street
Brighton
East Sussex
BN2 0JB
	
For the Respondent (Abbey National Plc)	MR RICHARD POWELL
(of Counsel)
Messrs DLA Piper Rudnick Gray Cary UK LLP
Solicitors
Victoria Square House
Victoria Square
Birmingham B2 4DL	
For the Respondent (Cotton)	Neither Present nor Represented	

SUMMARY

Practice and Procedure; Time for Appealing

Unlike in Midland Packaging v Clark [2005] 2 AER 66, the EAT fax receipt log was made available, by reference to which para 1.8.2. of the EAT Practice Direction can and should be operated.  Midland Packaging not followed and disapproved, so that a Notice of Appeal (and all required documents) must be received complete by the EAT, as recorded by its fax receipt log, by 4pm on the relevant day if to be in time.  Both appeals consequently were out of time, but the exceptional circumstances of (i) the parties’ reliance upon Midland Packaging (ii) the change in the law justified an extension and, as with the Practice Statement 7 February 2005, litigants represented and unrepresented are now on notice
.  
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the hearing of two appeals against decisions of the Registrar in respect of time, whereby the Registrar ruled out of time appeals to the Employment Appeal Tribunal by would-be appellants.  The first would-be appeal is by Mrs Woodward against the Decision of the Employment Tribunal at London (Central) dismissing her claim against the Respondent, Abbey National plc, for direct sex discrimination and victimisation pursuant to the Sex Discrimination Act 1975. The second would-be appeal is by J P Garrett Electrical Limited against a Decision of the Employment Tribunal at Southampton, whereby it found in favour of the Claimant, Mr Cotton, in respect of a claim by reference to the National Minimum Wage Regulations, after a hearing in September and October 2004.   

2.	In respect of both appeals, the Appellant was represented by solicitors, and in respect of both of them the Notice of Appeal with accompanying documents was faxed to the Employment Appeal Tribunal on the last day for service of a notice of appeal, namely the last day of the very generous six week period which is provided for by legislation in respect of appeals against the decisions of employment tribunals.  

3.	It has been so often emphasised that compliance with  the time limit for  notices of appeal to the Employment Appeal Tribunal is of the essence. First, the period is a very generous one compared with the time-scale for appeals in the High Court and County Court and, secondly, the interests of certainty are paramount where a decision of the lower court, which can only be appealed on a point of law and hence exceptionally, has been entered in favour of a judgment creditor, who is entitled to the fruits of his or her judgment and not to be left with uncertainty as to whether and, if so, when any such judgment can ever be enforced.  

4.	The crucial nature of the compliance with the time limits has been emphasised most obviously in the well known decisions of United Arab Emirates v Abdelghafar [1995] IRLR 243 per Mummery P at the Employment Appeal Tribunal, as upheld and approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111. The need for that certainty has been further emphasised in the recent decision of this Appeal Tribunal in Sian v Abbey National Plc [2004] ICR 55. 

5.	These appeals both revolve around the impact of my judgment sitting alone in the Employment Appeal Tribunal, in Clark v Midland Packaging Limited [2005] 2 AER 266 EATPA/1146/04. That was also an appeal against the decision of the Registrar ruling an appeal out of time. The short facts of that case could be summarised in this way; that the Notice of Appeal in that case contained 21 pages, including the necessary ancillary documents to the Notice of Appeal. The Appellant’s representative had commenced faxing those documents to the Employment Appeal Tribunal prior to 4 o’clock on the 42nd day, but the faxing of the documents was not complete and none of the documents had been printed out until after 4pm, printing commencing at 4.06pm, and I allowed the appeal from the Registrar and held it to be in time. That authority has been relied upon by both Appellants in these appeals, by Mr Ritchie of Counsel on behalf of the Appellant, Mrs Woodward and by Mr Damian Brown of Counsel of behalf of the Appellant in the J P Garrett case. The Registrar did not follow the decision in Midland Packaging, and Mr Richard Powell of Counsel has appeared on behalf of the Respondent in the Woodward appeal in order to justify the Registrar’s decision, and has put forward arguments as to why I should depart from the decision in Midland Packaging. 

6.	The Respondent in the J P Garrett case has not opposed Mr Brown’s appeal but nevertheless, of course, as there is a decision on the Registrar against him, he must persuade me to overturn it on appeal. 

7.	There are two bases for the decision in Midland Packaging, one factual and one what might be called legal. I turn first to the factual aspect. In Midland Packaging, there was no log produced by the Employment Appeal Tribunal showing the time of receipt by the Employment Appeal Tribunal of the fax in that case. None such was relied upon by the Registrar in refusing the appeal and, naturally enough, neither party therefore had any knowledge of the existence of the fax log and nor did I. It was consequently not before me, and I did not know then what is apparent both to me and to the parties now, namely that there is a full record kept by the Employment Appeal Tribunal, by way of a fax log of receipts by the EAT of such documents, giving both times of receipt and the length of the fax and the duration of its delivery.  Consequently, in Midland Packaging, the parties and I were left, to a degree, speculating. There was evidence available on the one hand from the appellant’s representatives from their end: that is plainly an unhelpful matter of itself, because without more, it would be difficult for the courts, and certainly for any opposing party, to rely on the accuracy of the equipment of the vendor. Secondly, there was the timing of the printed out document, printed at the top of the documents by way of fax header. From such information as there was in the Midland Packaging case, speculation led to a concession by the representative for the respondent in that case, which is recorded in paragraph 18 of my judgment, namely as follows, that such representative

“accepted that the probability was that the two fax machines were in communication with each other prior to 4pm and that, electronically, some part of this message had been received by the EAT machine by 4pm”.  

8.	I pointed out, in paragraph 19 of the judgment, again in the absence of knowledge of the accurate faxed record which is in fact available at EAT, that it would be a very comfortable answer to accept the date on a faxed document when it is printed out as the date of receipt. But in the light of the concession, and in the light of absence of certainty in that case, I accepted as a fact that, given the print out at 4.06, it made it sufficiently clear that there had been some kind of electronic communication in the ether prior to 4pm.  That is obviously an exercise which is regrettable and much better avoided if it can be, particularly without the benefit of expert evidence to speculate about when there is a meeting of minds, if one can use that expression, between two machines, and whether that meeting of minds takes place at the receiving end or the communicating end or somewhere between the two. This not a satisfactory way to deal with what is an important question of fact, particularly where, as is the case, if a notice of appeal is out of time, obtaining an extension of time is extremely difficult and if it is in time, but just, then a respondent has no recourse but to accept that it is facing a notice of appeal which might have been out of time.  

9.	In this case, I have the benefit, in both appeals, of a fax log from the Employment Appeal Tribunal.  I deal with the Woodward case first.  The EAT fax log shows that on 22nd April, being the 42nd day, at 15.48 the EAT fax machine received the first page of a document sent by the Appellant, and that it took 18 minutes and 46 seconds for there to be delivery of the total number of 61 pages. It can be seen therefore that, on the EAT log, the majority of the pages were delivered prior to 4 o’clock but that any rate some of those 61 pages did not arrive until nearly 7 minutes after 4 o’clock.  

10.	So far as the print-out is concerned, the fax header sheet on the top of the document as received by the Employment Appeal Tribunal shows 15.49 as the time on which the first page was printed which, of course, is 1 minute after the date recorded as the date of receipt on the fax log and 16.07 as the time when the 61st page was printed out.  The evidence of the Appellant’s solicitors was that, having explained in detail why it came to be left so late (and I shall return to that explanation later), they set out the fact that the fax machine was ready to be faxed, they say, at approximately 3.35 and that, according to their records, the 61 page fax began feeding through at 3.40. As compared, therefore, with Midland Packaging, there is no doubt at all, on the facts of this case, that the first page of the Notice of Appeal – indeed, it would be clear, the whole of the Notice of Appeal itself – was through before 4 o’clock, although not, of course, the ancillary documents which are required by the Rules to be delivered in order for there to be a valid notice of appeal, namely the judgment of the Employment Tribunal and the ET1 and ET3, which were not finally delivered until 6 or 7 minutes after 4 o’clock.  

11.	So far as the J P Garrett appeal is concerned, the EAT fax log there shows that the start of receipt was at 16.01. There were 25 pages, which took 3 minutes, 35 seconds and so on any basis, according to the fax log, even the first page was not received until after 4 o’clock, and the balance was then through before 4.05.  Again, we have the fax as printed out by the Employment Appeal Tribunal which shows 16.01 for the first page and 16.04 for the 25th page.  

12.	So far as the record produced by the Appellant is concerned, the Appellant produces a print out from his end which says “st time” which I understand to mean start time but what that means is unclear, and clearly Mr Brown, without expert evidence, has been unable to confirm whether that means the start time when the button was pressed on the fax machine, or whether it means the start time when the machine started to send, having first fed the papers into its memory; and it also records three minutes and 35 seconds as what is called the “usage time”. In any event such time is recorded as being 15.59, and the letter sent by the Appellant’s solicitors seeking to appeal against the Registrar’s decision records their position as being that the fax was transmitted at 3.59pm. 

13.	Straightforwardly adopting the EAT log, that means that the document was not even partially received until after 4 o’clock. But it was, it seems, started to be sent before 4 o’clock.  Without entering into the same kind of speculation, and in the absence of any concession by the Respondent in this case, it is difficult to know what assumption one could arrive at as to when there was this meeting of documents in the air and whether it would, indeed, be assumed, as was conceded in the Midland Packaging, that having been sent or started at 3.59, some page must have been received electronically by 4 o’clock.  

14.	It is apparent from what I have already said that I deprecate the need for this kind of speculation and that I am persuaded that it must be right to adopt the EAT log as the record of when the EAT receives the document. The log is headed up with the word “receive”; it is not known to me whether what that means is the time when the EAT fax machine electronically receives the documents into its memory or whether it is the time when the EAT machine prints out the documents. As I have indicated from the factual evidence in this case, the EAT print out time in the J P Garrett appeal was identical to the time in the faxed log, whereas the print out time in the Woodward case was 1 minute later than the time in the fax log, which perhaps suggests the former. But, on either basis, it must make common sense to accept the accuracy, as I believe there to be, of the record of  receipt in the fax log of the EAT, and not to accept either uncertain evidence about the accuracy of the sender’s machine or some kind of speculation as to electronic receipt short of the record in the EAT fax log.

15.	I am satisfied that, in so far as Midland Packaging was decided on the basis of the aforesaid electronic speculation, it was certainly an unreliable foundation to support what is absolutely crucial, namely the need for certainty in relation to the enforcement of this very crucial question of being in or out of time for service of a notice of appeal.  

16.	The second matter that was resolved in Midland Packaging, however, was not factual.  Having, in that case, accepted the concession which I do not have in this case and would not find appropriate in a future case, (but in this case and future cases accepting the accuracy of the EAT log), I then in that case concluded that it was sufficient if one page or at any rate, in that case, the whole of the Notice of Appeal was delivered by the 4 o’clock time, even if the balance of the required documents was not yet transmitted. So far as this is concerned, I did not have referred to me in argument in Midland Packaging the following matters. First of all, there was no attention paid to the wording of the EAT Practice Direction para 1.8.2. Secondly, there was no reference to the Civil Procedure Rules by which, by its Practice Direction para 1.8, the EAT is, where appropriate, guided, at PD 5.3 (to be found at page 139 of volume I of the present White Book) at 5 PD.6. Thirdly, there was no express reference to the authority of the Court of Appeal in Gdynia America Shipping Lines (London) Ltd v Chelminski [2004] ICR 1523.

17.	I deal first with that last aspect.  Gdynia was a decision which certainly impliedly approved the practice and rule of this Appeal Tribunal that a Notice of Appeal is invalid if not accompanied by the judgment of the Employment Tribunal and now also by the ET1 and ET3 (see paragraph 4 of the judgment of Pill LJ at 1525 H).`

18.	Mr Ritchie submits that the fact that Gdynia was not referred to is of no materiality because there was no challenge in Midland Packaging, and there is no challenge in either of these appeals to the proposition that a Notice of Appeal which is not accompanied by the documents which are required by rule 3(1) of the Employment Appeal Tribunal Rules and paragraph 2.1 of the Practice Direction is invalid and consequently, insofar as unaccompanied, such notice of appeal would not be regarded as served in time, and only becomes valid when accompanied by such documents; and so if those documents are themselves late, then the whole notice of appeal is out of time. 

19.	Whereas under the old practice and the old Rules the documentation which is required to accompany the notice of appeal was only the ET judgment, there was a change in the Rules, as from October 2004, to require additional documents, namely the ET1 and ET3 to accompany the notice of appeal; and I delivered a Practice Statement on 3 February 2005 remarking upon the fact that since the Rules were amended, both practitioners and litigants in person were not complying with them. I pointed out in paragraph 3 of the Practice Statement that 13 out of 20 notices of appeal received between 2 and 26 January 2005 and returned as invalid were only invalid because they were neither accompanied by the ET1 nor the ET3, nor by any explanation as to their absence or unavailability. The reason for the Statement which I made in open court, was to set out in paragraph 5 the need to re-emphasise the requirements, and the consequence of failure to comply with them, namely that:

 “an appeal not lodged within the 42 days validly constituted i.e. accompanied by the required documents will be out of time”.

 I made clear in paragraph 6 that, from the date of the Practice Statement:

“ignorance or misunderstanding of the requirements of the service of the documents required to make a notice of appeal within the 42 days valid will not be accepted by the Registrar as an excuse.”

However, prior to that date, there had been some leniency exercised in relation to ET1’s and ET3’s by the Employment Appeal Tribunal, on appropriate occasions.

20.	 It is thus not an issue in these appeals, and was not in any doubt at the time when both Appellants and their solicitors sought to comply with the requirements of the rules for service of a notice of appeal, that a notice of appeal would not be valid unless accompanied by the requisite documents. And the position was the same at the time of Midland Packaging, albeit at the time (August 2004) only relevant so far as the ET Judgment was concerned, as to which no leniency was being shown (see Kanapathiar v London Borough of Harrow [2003] IRLR 571).

21.	I agree therefore, with Mr Ritchie that the absence of express reference to the Gdynia in the Midland Packaging decision is not a material distinction with the position here. What, however such consideration does do, is emphasise the importance of the Practice Direction para 1.8.2, which was also not referred to in Midland Packaging.  It is perhaps surprising that neither I, nor the parties, reflected upon the precise terms of Practice Direction para 1.8.2 in the course of that appeal. All that can be said is that what was at issue in that case was much more the factual scenario, and, as Mr Ritchie has rightly said, it was taken for granted that there was a requirement for compliance with the Rules by the attachment of the accompanying document. 

22.	Suffice it to say, that whereas there was no express attention paid to para 1.8.2 in the Midland Packaging appeal, it has formed the bedrock of Mr Powell’s argument on this appeal and of our considerations.  It reads as follows:

“When a date is given for serving of a document or for doing some other act, the complete document must be received by the Employment Appeal Tribunal or the relevant parties by 4pm on that date.  Any document received after 4pm will be deemed to be lodged on the next working day.”

 Mr Powell emphasizes the requirements that there must be receipt by 4pm of the complete document. And it is not in issue between the parties, as I have indicated, that in relation to a notice of appeal the complete document must mean the notice of appeal plus the accompanying documents, which are necessary to make the appeal valid.

23.	The words in Practice Direction para 1.8.2 are very simple. But that complete document “must be received by the EAT.” The words of the CPR for which we can look for guidance are, as Mr Ritchie and Mr Brown pointed out, are somewhat different. Practice Direction 5.3 reads as follows:

(1).	Subject to paragraph (6) below, a party may file a document at court by sending it by facsimile (“fax”).
(2).	Where a party files a document by fax, he must not send the hard copy in addition.
(3).	A party filing a document by fax should be aware that the document is not filed at court until it is delivered by the court’s fax machine, whatever time it is shown to have been transmitted from the party’s machine.
(4).	The time of delivery of the faxed document will be recorded on it in accordance with paragraph 5.2.
(5).	It remains the responsibility of the party to ensure that the document is delivered to the court in time .
(6).	If a fax is delivered after 4pm it will be treated as filed on the next day the court office is open.”

24.	That CPR reflects accurately the same approach as I had at the time of the Midland Packaging judgment and retain today, namely the firm view that it is not appropriate to rely on what time is shown on the transmitting party’s machine. But the wording which is used in the CPR, whose difference is indicated by Mr Ritchie and Mr Brown, is that in 5.3.3 namely “that the document is not filed at court until it is delivered by the court’s fax machine”. That makes it clear that it is the time of printing out, that is delivery by the machine, as opposed to delivery to the machine upon which the Royal Courts of Justice rely, and that is not spelt out, or at any rate, at the very least, is not the same wording as, in para 1.8.2 of the EAT Practice Direction.

25.	So far as the facts of the Woodward case is concerned, if there is a difference it is favourable to the would-be Appellant because, as I indicated earlier, the printout date in the Woodward appeal was 15.49 on the first page, whereas the time in the fax receipt log when the document was received is 15.48 and this may not just be a matter of a few seconds - although even that would be relevant - is apparent from the fact that the receipt is said to last 18 minutes and 46 seconds, thus perhaps expiring on that basis at 16.06, when the print out of the last page is at 16.07. So that it may be that the EAT fax log records receipt at the machine, as opposed to the date of printout, and if anything that is favourable to the Appellant.

26.	If this case were being decided ab initio, without reference to Midland Packaging I would be totally convinced that the right course is to interpret para 1.8.2 by reference to the EAT fax receipt log. That is how I propose to interpret it in this case, and how in future these cases should be interpreted. That does not impact upon the Woodward case without there also being consideration of the question of the completeness of the document because, as I have indicated, the Woodward fax was received, at any rate in part, prior to 16.00. It does have an impact on the JP Garrett case, where the fax receipt log shows receipt at 16.01.

27.	I do not conclude that the Practice Direction needs to be read entirely in tandem with the CPR. The CPR is treated only to be guidance. What the CPR does is further emphasise that the courts should not be left in uncertain speculation, but should have a definite time to rely upon.  The CPR refers to practice at a number of different courts and registries.  The EAT Practice Direction applies only to the Employment Appeal Tribunal. I am confident that we can and should operate on Practice Direction by reference to our own records. The Royal Courts of Justice find it more certain to rely upon the print out date. I do not feel it necessary to reinterpret para 1.8.2 to rely upon a print out date, but we can interpret words very simply as they stand. That the “complete document must be received by the EAT by 4pm” means recorded and received in the automatic fax log, which is generated by the electronic system operated at the EAT. And that will be definitive.

28.	The fact however that the CPR, and its encouragement of certainty, and the precise words of para 1.8.2 and their easy accommodation with common sense, were not referred to in Midland Packaging returns me to this central question of the “complete document”. It is clear, that if it is right, Midland Packaging created an exception to the rule that in order for it to be valid, the notice of appeal must be presented in time, accompanied by the necessary documents, as is accepted by Counsel for the Appellants in this case to be the law, as is recorded as such in Gdynia by the Court of Appeal, as is certainly stated to be the case implicitly in the Practice Direction and in the Rules, to which I have referred, and as was the fundamental basis for the Practice Statement which I made in February of this year.

29.	There is in my judgment no call for such an exception. It would have been perfectly possible in both these cases for steps to be taken to ensure that the faxes in question were delivered prior to 4pm. And in future there can be no doubt that more allowance of time will be made, than for example, Mr Ritchie’s solicitors made, for delivery of a 61 page fax. I do not accept Mr Brown’s submission that because his solicitors’ transmitting machine apparently showed 15.59 that it could in some way be assumed that some part, at any rate, of the Notice of Appeal would be received by 4pm. The assumption, in future, must be that the entire document must be faxed in sufficient time, for it to arrive with the Employment Appeal Tribunals as a complete document prior to 4pm, just as it is necessary to post a document, or send them by courier, in time for delivery of them complete, prior to 4pm.

30.	This is a different and considerably less lenient approach to the use of the fax transmission mechanism than was accepted by me on behalf of the Employment Appeal Tribunal in Midland Packaging.  I am satisfied that it in fact encourages both certainty and consistency because, contrary to Mr Brown’s submission, this would be entirely consistent, not only with the operation of the post, but also the operation of e-mail, where there will be a record at the Employment Appeal Tribunal of when the e-mail arrives, and of course the e-mail will, assuming it has the relevant attachments, be a complete document at the moment it arrives.

31.	In my judgment, it is right that there should be one test for all such methods, and that test is when “received by the EAT”, and the evidence as to when it is received by the EAT, so far as both e-mail and fax are concerned, will be when they are recorded electronically as received by the EAT. And the requirement is for a complete document, and that is the case whether it is presented by post, by e-mail by hand or by fax.

32.	The consequence is that these two Appeals were lodged out of time, and to that extent the Registrar’s decision was right.  I am faced however, with applications for an extension of time by both Mr Ritchie and Mr Brown, on behalf of their respective clients. Mr Ritchie has put the case very powerfully on behalf of his clients, and of course his clients stand in a stronger position than Mr Brown’s clients because, on any basis, the vast majority of their document was delivered in time, whereas, on my findings, none of Mr Brown’s document was delivered in time, albeit he was only one minute late.  One minute is, in my judgment, as bad as one hour or one day, if there is no excuse. And Mr Brown’s clients have not offered any excuse for their delay.  

33.	It is plain from Abdelghafar and Aziz to which I have referred, that even where there are such reasons put forward as delays in funding, delays in obtaining of legal aid, delays in advice, that may not be sufficient unless the excuse is such as to indicate why for the entirety of the six weeks it was not possible to put in a notice of appeal. It is certainly no excuse for leaving the matter to the eleventh hour, or in the case of both these two appeals I have now found, the thirteenth hour.  

34.	The excuse put forward therefore by Mr Brown is simply the explanation by the Appellant’s solicitor that he thought his clients were in time, No explanation is put forward at all for why it was left so late. Mr Ritchie’s explanations on the other hand are good, in the sense that the are full and honourable, but would of themselves be no answer, if in fact there was simply the Aziz or Abdelghafar test applied. We are applying that test week after week to those, who, quite inexcusably in my judgment, given the strictness with which it is known that this deadline is applied, fail to comply with it, after leaving their attempt to comply to the last minute.

35.	Some credit must be given to Mr Ritchie’s clients for at least having attempted the explanation, but it is obviously insufficient.  The basis upon which Mr Ritchie puts forward his application for an extension, and his case in support of it, is however not based upon such explanation, although clearly he relies upon it as giving him some kind of meritorious background to his application.

36.	The first basis upon which his case can be put is by reference to the evidence of his solicitors, and I refer particularly to the statement of Mr Bearman. While explaining what has gone on up to the last day, he recounts the racing around that was done in the hours leading up to the 4pm, and the almost palpable sigh of relief that one can sense when he explains how they managed to get to a fax machine which started feeding through the 61 page fax at 3.40pm. What Mr Bearman says is as follows, at paragraph 17 of his statement:

“As it became clear that we might have to send a Notice of Appeal to the EAT close to the 4pm deadline, I was mindful of the details of a case I had read about in a recent edition of IDS Brief (Midland Packaging ..)…. I therefore understood that provided the transmission of the appellant’s notice of appeal had begun prior to 4pm on 22 April it would still be considered as in time”

37.	He says that the 61 page fax took approximately 9 minutes to be scanned into his fax machine’s memory and thus transmission began, in his belief, at 3.49pm which is of course right; but what he had not appreciated, it seems, was how long it took for 61 pages to be transmitted.

38.	There are required to be exceptional circumstances before the Abdelghafar or Aziz deadline or strict rule can be avoided. I conclude that this reliance at the time on Midland Packaging in taking the view that it was sufficient to get some - indeed the bulk - of the fax through on time is an excuse which is an exceptional one, particularly taken together with the other submissions, which Mr Ritchie put forward, to which I will turn. 

39.	The second submission which Mr Ritchie puts forward is one which is not specifically related to the facts of his case and, with which Mr Brown associates himself. He submits that Midland Packaging is a previous decision of the Employment Appeal Tribunal, which, although not binding upon me, is persuasive and ought ordinarily to be followed. He would add that it has become known to the profession, and indeed Mr Bearman makes clear, and indeed although there is no evidence from Mr Brown’s instructing solicitors that they knew of Midland Packaging before their transmission, they certainly relied upon it in support of their appeal; and although not reported in the specialist employment law reports, it had been reported, as I have indicated, in the All England Law Reports (and it seems in IDS Brief).

40.	Mr Ritchie referred to Harvey on Industrial Relations and Employment Law Volume 5 at T1431 for the following proposition of law which he recited:

“Whilst the EAT is not bound by its own previous decisions, they will only be departed from  in exceptional circumstances, or where there are previous inconsistent decisions [and there is a reference to Morison P in Secretary of State for Trade and Industry v Cook [1997] IRLR 150 at 151].” 

Harvey continues:

“Where exceptional circumstances exist  and a previous decision is considered to be plainly wrong, the approach taken by the EAT under the  Presidency of Morison P was to direct that it should no longer be followed by employment tribunals, rather than to perpetuate the uncertainty caused by two decisions of equal standing.”  

41.	This is not a case where there are inconsistent decisions, but where Midland Packaging, in my judgment, was wrongly decided, or at any rate ought not to be followed, because it does not adequately comply with the requirement, which there must be, for certainty in the operation of the EAT practice; and, primarily, it was decided against a background of a lack of appreciation as to the existence of an accurate EAT log and a lack of consideration of the importance of the appeal documents being complete. Coupled with his reference to Harvey’s statement of the need for “exceptional circumstances” before not following a previous EAT decision is, of course, Mr Ritchie’s reminder to me that those very words are what are used in Abdelghafar by Mummery P, as being what is required for there to be an explanation or an excuse, sufficient to grant an extension. If, as he submits, there are exceptional circumstances such as to justify departure from Midland Packaging, then there must be exceptional circumstances such as to grant an extension for those who have complied with Midland Packaging and relied upon it, and whose circumstances would have been differently treated, if Midland Packaging had remained.

42.	From this proposition he moves to refer to the authority, in a somewhat different situation of Setiya v East Yorkshire Health Authority [1995] IRLR 348.  That was a case in which Mummery P, at the Employment Appeal Tribunal, set out important views in relation to the question of the effect of a change in the law, be it prospective or retrospective. Of course in the context of the common law, and the operation of court decisions, it is well established that if the law changes, as a result of a decision by the courts, as opposed to by Parliament, such change is treated as based  upon a well understood legal principle that there is not a creation of new law, but a declaration as to what the law always has been.

43.	Mr Ritchie submits that that should not apply to a case in which, as in this case, I propose to depart from Midland Packaging. There are two reasons why that can, and should, be the case. The first is that I would not be in any way interfering with the ‘declaration’ principle, to which I have referred, if I declared that the law was, and always had been, that these notices of appeal were out of time, but exercised the discretion which I have, albeit a limited one, within Abdelghafar and Aziz.

44.	Secondly, it would be entirely consistent with the approach which I adopted in relation to the Practice Statement in February 2005, when I indicated that, whereas there had been breaches of the Rules which had in the past been treated on occasions leniently, as from the date of that Practice Statement such breaches would not be so treated. Thus, consistent with that approach, I could, submitted Mr Ritchie, adopt a position in which, so far as his client is concerned, and Mr Brown would adopt that proposition, grant the Appellants exceptional relief from what would now, retrospectively, have been a breach of the Practice Direction, but making it clear that in future no one else would obtain such relief, this judgment, no doubt being fully published, having made the position entirely clear.

45.	So far as the Respondents are concerned, I have already noted that the Respondent in Mr Brown’s appeal does not oppose his appeal against the Registrar’s order.  As for Mr Powell, who has, as I have indicated, persuasively put forward the case for the Respondent, and indeed to that extent succeeded in overturning Midland Packaging and upholding the Registrar’s order, he recognizes the force of the case made by Mr Ritchie in his appeal, on the basis which I have described and although of course not in any way conceding the position, he did not argue forcibly against the exercise of the discretion, for which Mr Ritchie, and consequently Mr Brown, have contended.

46.	I agree with Mr Powell’s approach.  It seems to me right, while I declare that for the future (1) the EAT fax receipt log will be what is determinative as to the time of receipt of a fax, (2) the fax, so far as the Notice of Appeal and its accompanying documents are concerned, must be complete.  To that extent, therefore, while upholding the Registrar’s order that the appeals were out of time, I grant an extension both to Mr Ritchie’s client and, although Mr Brown does not have all the arguments which are available for Mr Ritchie’s client, as has been seen, (and taking into account the stance of the Respondent in that appeal) also to his client, on the exceptional basis that I am hereby changing the law, so far as Midland Packaging is concerned, upon which they either relied, in the case of Mr Ritchie’s client, at the time, or, in the case of Mr Brown’s client, have relied for the purpose of this Appeal, and would be prejudiced by the change. I grant the exceptional relief which they seek.

47.	To that extent, therefore, the Appeals will be allowed, on the basis that there will be an extension of time for the Notices of Appeal by the required minutes in each case.