Appeal No. UKEATPA/1783/10/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 June 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR N HINE AND MRS R HINE T/A HINE MARKETING PARTNERSHIP	APPELLANT

(1) MR K TALBOT
(2) MRS F MATTHEWS
(3) ARCHANT DIALOGUE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MR TOM COGHLIN
(of Counsel)
Instructed by:
Darbys Solicitors LLP
52 New Inn Hall Street
Oxford
OX1 2QD
	
For the First Respondent

For the Second Respondent

For the Third Respondent
	MS OLIVIA-FAITH DOBBIE
(of Counsel)
Instructed by:
Simpson Millar LLP Solicitors
27 St Paul’s Street
Leeds
LS1 2JG

Written Submissions

MS NADIA MOTRAGHI
(of Counsel)
Instructed by:
Eversheds LLP
Kett House
Station Road
Cambridge
CB1 2JY

SUMMARY
PRACTICE AND PROCEDURE – Time for appealing

One page of the 5-page Reasons was omitted from a last minute Notice of Appeal.  Discretion was exercised to extend time.  The solicitor had a modest system in place to check.  The error was venial.  The delay fully explained and excused.  Muschett applied.

HIS HONOUR JUDGE McMULLEN QC

1.	This is an appeal from the decision of the Deputy Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant.  I will refer to the parties as the Claimants (Mr Talbot and Mrs Matthews) and the Respondent (Mr Nicholas and Mrs Richenda Hine).  The Second Respondent to proceedings below was Archant Dialogue.  In this quadrangular litigation, two Claimants made claims following what was said to be a transfer of an undertaking from the Hines to Archant.  A preliminary determination of this matter was that there was no relevant transfer, and thus the Hines are liable.  Today the Hines are represented by Mr Tom Coghlin, Mr Talbot by Ms Faith Dobbie, and Archant by Ms Nadia Motraghi.

Introduction
2.	The underlying appeal is an appeal by the Hines against the Judgment of Employment Judge Harper, who sat at Bristol for two days and who delivered the Reserved Judgment with Reasons on 26 October 2010.  The effect of the decision that there was no relevant transfer or service provision change is that the Hines become liable for such employment law breaches as may be found in due course.  As it stands, the stakes are high, for the present claim is in respect of roughly £74,000 against the Hines, a small business.  The appeal was properly instituted three days beyond the 42 day time limit given for lodging a Notice of Appeal with all relevant documents.  The Deputy Registrar determined it was out of time.  There is no dispute about that, but she would not exercise her discretion in favour of the Appellant.  That is the issue before me.

The legislation
3.	The relevant provisions are not in dispute.  Indeed, all three counsel before me engagingly rely on what they call the very useful summary of the practice and the law which I gave in Muschett v London Borough of Hounslow [2009] ICR 424.  For a slightly fuller and more up‑to‑date assessment of the authorities, see the Judgment I gave in Miller v Lambeth PCT [2010] UKEAT/0943/10 (paragraphs 5 and 15) recently approved by the Court of Appeal.

4.	The discretion to be exercised when it is accepted there is an out‑of‑time appeal is a broad one and is regulated by clear principles.  In effect before me is a rehearing of the matters before the Deputy Registrar.  Evidence has been called by the Hines and their solicitor, Mr Parry, and, although initially indicating a challenge in open court, that evidence has been accepted without challenge.  Nevertheless, it remains today a new hearing on evidence.

The Deputy Registrar’s directions
5.	The Deputy Registrar directed herself by reference to the authorities that I have summarised in Muschett.  She called for representations and decided in accordance with those authorities that the Notice of Appeal was out of time and she declined to enlarge it.

The facts relating to the Notice of Appeal
6.	On 26 October 2010 the Judgment was sent to the parties.  The clock began to tick against an Appellant.  It was received two days later by Mr Hine, and on 9 November 2010 he had a meeting with Mr Parry of Darbys, who had come into the case for the first time.  Effectively, the Hines had previously appeared in person, and different counsel appeared on behalf of Archant.  Ms Matthews, the second Claimant, was represented by a solicitor, and Mr Talbot was in person.  Between that date and 29 November, when full papers were sent to Mr Parry, a serious concatenation of personal circumstances affected the Hines. Graciously neither Ms Dobbie nor Ms Motraghi takes any issue with the circumstances which Mr Hine puts forward explaining why he did nothing during in that time.  Ms Motraghi does not criticise by way of lack of excuse what occurred; Ms Dobbie notes that Mr Hine was able to deal with certain legal matters and get his magazines published.  But it seems to me that, if there is no attack upon the circumstances which Mr Parry has put forward as being the reasons why Mr Hine did not do anything further in his legal case, it would be unfair when taking an analytic approach to all these periods within the 42 days, to criticise Mr Hine for doing as little as he did.

7.	On 29 November 2010 Mr Parry, now in charge of the papers, recognised that a Notice of Appeal needed to be submitted quickly, and under the careful drafting of Mr Coghlin to whom papers were dispatched on Tuesday, 30 November 2010; they went by DX.  Again, Ms Dobbie criticises that method of communication; it could have been quicker, but that is the method of communication favoured throughout legal practice and much of the court system. I see it as entirely reasonable for solicitors in Oxford to dispatch by DX instructions to counsel, arriving in London on 2 December 2010, still five days ahead of time.

8.	Mr Coghlin acted promptly; a Notice of Appeal was drafted at the same time as Mr Parry was working on an application made under PD 7.1 to bespeak various pieces of evidence in support of the grounds of appeal, relating to what might be described as evidential matters.  Without such an application the argument could not get off the ground, and it should ordinarily be submitted at the same time as the Notice of Appeal.  So he and Mr Hine were working on this material on 7 December 2010.  

9.	At 2.05pm Mr Parry’s secretary dispatched by email a Notice of Appeal with the supporting documents running to 55 pages.  These included the two claim forms, the two responses, the Judgment and four out of the five pages of the Reasons.  There was also a letter of application of four pages bespeaking various aspects of the evidence from some of the 17 witnesses called within this rather compressed two‑day PHR.  Between 2.30pm and 3.00pm the secretary phoned the EAT, and an officer here answered.  The question put to him was whether the EAT had received their email attaching a letter and Notice of Appeal, and that was confirmed by the officer.

10.	On 9 December 2010 at 4.30pm the officer emailed back to Darbys to say that the appeal was not properly instituted, for page 5 of the Reasons was missing.  This page was supplied at 4.41pm on 9 December 2010, which made it three days late, since anything arising after 4.00pm is deemed to be the next day.  Thus it is common ground that the Notice of Appeal was three days out of time.

The submissions 
11.	On behalf of the Hines, Mr Coghlin contends that there could be no more venial error than the one that appears in this case.  He accepts that the page is essential to the documents, but time was taken up, and it has to be divided up according to the reasons obtaining at any given time.  Thus, taking as he must the time from when Mr Parry received the material on 29 November 2010 to the deadline, he contends that Mr Parry operated perfectly reasonably and correctly in considering the papers he had then received, dispatching them with instructions to counsel quickly, and doing so by DX.  Mr Coghlin did not advance, nor was he challenged about, the fact that he himself had turned round the papers and produced a Notice of Appeal very quickly upon receipt of them.  Mr Coghlin contends that the nature of the default here was accidental; Mr Parry’s secretary did ring the EAT but did not ask the precise question as to whether all the documents which she thought she had sent had been received. The explanation for it is that the system in place at Darbys does not include a check that all documents put into a scanner have been scanned.  The explanation he offers is that two pages got jammed together and only one was scanned.

12.	There is only one authority in the EAT where there is one missing page. In Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 the Court of Appeal upheld HHJ Peter Clark’s refusal to exercise discretion where two pages of the claim form were missing; whereas in Nationwide Leisure Ltd v Parnham [2009] UKEATPA/0724/09 Judge Clark allowed an appeal where one page of a claim form was missing.  It is contended that where there is fault of an adviser, as it is accepted there was here, it is relevant to consider it when with other factors it might lead to the exercise of discretion.  Cases based in the Employment Tribunal jurisdiction, where the test is different (what is not reasonably practicable) are not of assistance to the EAT, where the discretion is wider.

13.	On behalf of the Respondents to the appeal, first Ms Dobbie contends that the relevant period of scrutiny is the seven days since the papers were sent to Mr Parry.  The real fault here though is that there was no method for checking that all the pages were sent. It is a matter of pure idleness of Darbys for them not to have a system in place for doing this.  This is a critical page which ought to have been included.

14.	Ms Motraghi, opposing the appeal on behalf of Archant, contends that PD 7.1 is not mandatory, and an application for a further detailing of evidence can be made at a later stage than the Notice of Appeal.  There is no relevant distinction between cases treated more leniently because they are accidental than others.  Most cases, she says, will be accidental; there are very few cases of a deliberate decision (see, for example, Singh‑Rathour v Taylor and Ors [2011] UKEATPA/0824/10, a decision not to send various documents because a partner thought they were not relevant).  It was not relevant either to say that there was no prejudice and that the matter had not yet reached a Judge; the requirements of the Practice Direction should be followed.  It is not fair to rely on officers of the EAT to put right the errors in transmission made by solicitors. The Tribunal jurisdiction is relevant (see Capital Foods Ltd v Corrigan [1993] IRLR 430 and Camden & Islington Community Services NHS Trust v Kennedy [1996] IRLR 381).  Where was, Ms Motraghi asks, the system in place by a properly qualified solicitor to check that errors like this did not occur, such as is required in first instance jurisdictions?  Written submissions were made on behalf of Ms Matthews to similar effect.

The legal principles
15.	The legal principles have been outlined many times, not least by me, and most recently by the Court of Appeal in Zinda v The Governing Body of Barn Hill Community High and Ors [2011] EWCA Civ 690 and Miller (above)

Discussion and conclusions
16.	I prefer the argument of Mr Coghlin, and have decided to allow the appeal.  The purpose of a discretion is to acknowledge cases where there is venial fault or a very convincing explanation; here, there are both.  It is common ground that the period up to the papers being sent to Mr Parry is not exigible; no criticism is to be made of Mr Hine up until that time.  Albeit he had a meeting with Mr Parry on 9 November 2010, I am fully satisfied on reading his evidence and Mr Parry’s that no criticism can be made of either of them for that passage of time up until 29 November 2010.  Thereafter, the papers went from Mr Parry to Mr Coghlin, who got them on 2 December 2010.  

17.	I take the same view as above: this was the action of a provident solicitor knowing he was coming to the EAT on a TUPE point where a lot of money was at stake. He was quite right to seek the assistance of experienced counsel.  Mr Coghlin acted with dispatch.  Meanwhile, Mr Parry was doing what in my judgment he was required to do, because without the attendant references to the evidence given during this very dense Employment Tribunal hearing, the Notice of Appeal in many parts would not stand a chance of success.  The Practice Direction should be followed so that a detailed application for the adduction of evidence should be made at the time of the Notice of Appeal.
 
18.	As all counsel realistically accept, the reason for this appeal being improperly instituted was the failure of Mr Parry’s office to check that every single page had gone through.  Ms Motraghi says with some force that anybody mildly experienced in technology knows that glitches occur; pages get stuck together, not photocopied, not transmitted, or not scanned, and who should carry the burden of that mistake?  In my judgment, it is the Appellant.  But in this case the question asked by Mr Parry’s secretary was answered correctly by the EAT, which was to say that material sent had been received.  So there was a system in place for checking; the EAT practice direction enjoins those who submit documents at the very last minute to make sure that they have arrived.

19.	This case is different from the circumstances I examined in Westmoreland v Renault UK Ltd [2009] UKEATPA/1571/08, where an Appellant insisted that he had sent nine documents when he had, as I found on evidence, submitted only five. And so when he asked whether the EAT had received the material, the answer correctly given was that the EAT had, and had received in fact the five that had been sent.  

20.	The circumstances in Abiola v North Yorkshire Council [2008] UKEATPA/0013/08 are relevant.  The question asked by the Appellant in that case was this:

“It arrived at the EAT on 21 January (which is Day 42) and at 2pm the Claimant says that in accordance with the information on the website he made a phone call.  He spoke to a male member of staff at the EAT, whose name he cannot remember, and said: ‘Has my documentation arrived and is it okay?’  A member of the team said: ‘It has arrived and as far as I can see it is all right.’  The Claimant accepted from his experience of the County Court that normal practice is to serve a document and the office stamps it.  Apart from that he is not experienced in litigation.”

21.	In my judgment, the answer given by the officer here was sufficient to reassure Mr Parry’s secretary that what she had sent had been received.  It is of course obvious now that what she should have asked is, “have you received every single page I have sent?”; or at least she should have checked herself through the scanning mechanism.  That is the explanation for the essential factual question in this case: why was the Notice of Appeal not served by 4.00pm on Day 42?  The answer is that it was because of the answer given by the EAT officer to the Appellant.  It is not the job of the EAT to look through all of the documents and make good the faults of advisers, but it is absolutely clear that the practice of the EAT did good service to the Appellant here, for when the missing page was identified at 4.30pm on day 44 (effectively, day 45) it was corrected within minutes.

22.	To the principles that I set out in Muschett may be added the following.  (1) Generally speaking the errors that occur will be accidental; there are very few deliberate decisions.  (2) Generally speaking the prejudice to the employer is not one that is recognised in law.  To say that the putative Respondents will have to face further rigours is not the same thing as saying that they suffer prejudice in the legal sense, in that, for example, they have lost the opportunity to adduce relevant evidence.  Of course, they will be discomfited, put to expense and so on if the out‑of‑time appeal is allowed to be validated; but that is a natural consequence of allowing the exercise of discretion in any of these cases.  (3) I do not consider it relevant that the papers had been corrected by the time they reached a Judge on the sift several weeks later; that will always be the case.  No papers are put before a Judge until they have gone through the administrative stages and the judicial stage of a decision by the Registrar if it is found that they are not properly instituted.  

23.	The proposition about fault of legal advisers which I set out in Muschett continues to apply.  It is a different jurisdiction from that at first instance, where different tests apply. The fault of a legal adviser is in conjunction with other factors to be regarded as relevant but not conclusive.  I accept that there was a system in place here; imperfect, but at least it did require Mr Parry’s secretary to check that documents had got through to the EAT.

24.	I am also impressed by the comparative failure in this case.  The key documents had been served: the claims, the answers, the Notice of Appeal, the Judgment appealed against, the application for additional evidence.  Those are the major parts of the documentation.  The Reasons were included, all but one page.  It would not have satisfied the rule because it did not include all the Reasons. Mr Coghlin accepts the document is essential, but actually, in the Reasons one can see the essential dispute between the parties, and upon appeal, without page 5 being adduced.  If the discretion that is given to the court to allow an out‑of‑date appeal is to mean anything, it is to be available in the case of such slight error as this.  There was a failure by Mr Parry’s office, but it is one that is fully explained to me and a reasonable excuse has been given which I accept, and so I will allow the extension of time to validate the appeal, by three days.  

25.	I have not yet mentioned the merits of the case.  This is a point that would be taken by Respondents if it were to be said it had none.  Mr Coghlin did not address me upon it, nor did Ms Dobbie, nor Ms Motraghi, and I do not take it into account at all.  The case cannot be said to have no merits.