Appeal No. UKEATPA/0940/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                 At the Tribunal
	                 On 2 April 2008

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR C AKYEAMPONG	APPELLANT

1)  BARCLAYS BANK PLC	RESPONDENTS
2)  MR S CHAGGER
3)  MR D STEW

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MR C AKYEAMPONG
(The Appellant in Person)	
For the Respondent	MISS J STONE
(of Counsel)
Instructed by:
Barclays Bank Plc Legal HR
1 Churchill Place
Level 29
London 
E14 5HP	

SUMMARY
PRACTICE AND PROCEDURE:  Appellate jurisdiction
On hearing live evidence and submissions, no grounds were found for the exercise of discretion to extend time for the lodging of a Notice of Appeal by one day.

HIS HONOUR JUDGE McMULLEN QC

1.	This is an appeal from the decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant one day late.  I shall refer to the parties as the Claimant and the Respondents.

Introduction
2.	The appeal itself is an appeal by the Claimant in those proceedings against the judgment of Employment Judge Ahmed sitting alone at Birmingham on 26 April 2007 registered with reasons on 6 June 2007.  An application was also made for a review which was refused by the Employment Judge on 5 June 2007 as having no reasonable prospect of success.  At the hearing on 26 April 2007, at which the Claimant represented himself as he does today, and the Respondents, as today, were represented by Miss Stone, the claim was struck out pursuant to Rule 18(7)(b) as misconceived, i.e. having no reasonable prospect of success.  The Claimant sought to appeal against that.  

3.	There is a 42 day period during which an appeal may be brought.  The Claimant was well aware of that and received legal advice during the time.  He missed the deadline by a day.  The Registrar pointed this out, called for representations from the Respondents and from the Claimant; and on the basis of what he told her and having read the representations the Registrar decided as follows:-

“The Appellant attributes his delay to a variety of causes such as family problems, emotional stress, ill health (intermittent back pain and sleeplessness) and fatigue, the legal language communication gap and a misunderstanding about the calculation of the time limit.  None as outlined constitute an acceptable reason for delay.  Many litigants in this Court represent themselves and suffer from anxiety and stress but comply with the deadlines.  He claims that he had difficulty finding a representative although he had some help from the Coventry Law Centre and presumably could have asked about appeal time limits.  Information is readily available in this respect from a number of sources, including the internet and libraries and there is no burden on the Employment Tribunal to inform the Appellant that limits are strictly applied as the Appellant should expect this.  The Appellant is a highly educated man who would have received the Judgment booklet which explains how to calculate the time limit.  The Appellant had other priorities such as a Review application, a professional examination and his immigration status but it is difficult to see how these commitments justify a delay for the whole time of the appeal.  In reality the Appellant is out of time because he sent in his application so late that whether he miscalculated the time or not he ran a considerable risk that it would not be received in time.  Six weeks is a generous amount of time in which to appeal.”

4.	In accordance with Rule 3, the Claimant has a right of appeal to a Judge, orders were made for case management of this appeal and it has come before me today.

The facts
5.	As I anticipated at the outset, following the practice which I set out in Muschett and Others, UKEATPA/0281/07, the Claimant, a litigant in person, was bound to lead evidence;  and so I indicated to him that if the time came that that appeared to be the case, going beyond the submissions of law, it may be that I would hear evidence on oath so that the Respondents in fairness could have the opportunity to cross-examine him.  That stage was reached very early on in our proceedings and I asked a number of questions of the Claimant to flesh out some of the points he had made in his 20 page skeleton argument, related to the legal advice which he offered as the principal reason for his failure. 

6.	The Claimant approached the Coventry Law Centre before the hearing on 26 April.  The advice he got was that it was likely that he would have to pay a £500 deposit (Employment Tribunal Rule 20)  and that the Law Centre would not represent him on that occasion.  He knew at once on the day that he wished to appeal, and with that in mind contacted the Law Centre again. The Law Centre was advised of the outcome and wished to see the Judgment before giving advice upon it.  The Claimant also told the Law Centre solicitor that he was seeking a review.  The judgment was sent on 6 June 2007 and was received the next day.  The Claimant went to the Law Centre and in due course received advice as to the time limit, which he already knew, and as to the Law Centre declining to take the matter further.  I have seen the correspondence relating to that.  The Claimant conscientiously followed it up by seeking advice from other solicitors none of whom would take the case; and so he made arrangements to come to London to attend at Citizens Advice (CAB) at the Royal Courts of Justice, which he did on two occasions.  By 6 July 2007 he had received advice indicating again, as he already knew, the time limit expired on 18 July, that there was no time for the CAB to assist him and he should present it himself.  He was in London, of course, on 6 July for that purpose.

7.	The Claimant did not criticise Coventry Law Centre although he did indicate that it contributed to the delay.  He put forward about nine reasons why I should exceptionally allow the Appeal to be entered one day out of time.  

8.	The Registrar cited the relevant authorities, which are United Arab Emirates v Abdelghafar recently upheld in Jurkowska v Hlmad [2008] EWCA Civ 231 and of course I refer to the authorities which I set out in Muschett.  There needs to be a full honest acceptable explanation of the reasons for the delay.

9.	On behalf of the Respondents it is contended that none of this holds water as constituting an exceptional case.  Indeed it goes against the Claimant’s credibility that he has put forward at various stages in this case, and subsequently abandoned, so many reasons why he was late.  As to the reasons which he does give none of them is substantial, in particular the two argued before me.  Applying for a visa lest he be criticised for being an illegal overstayer was not relevant until the letter from the Home Office on 13 July.  The date was 18 July for the submission of the Notice of Appeal.  As for his engagement in examinations, at the Business School at the University of Coventry, where he is studying for an MBA, having already got a first degree in England, they were over on 22 June.  
10.	The Claimant asks me to make this an exceptional case and attempts to seduce me by imputing to me the wisdom of Solomon.  Flattering as that is, I do not accept that elevation nor that I am dealing with matters of life and death as King Solomon was nor the Claimant’s analogy with letting this “litigation baby live … as a benefit to society”.  What I have to understand is the down-to-earth reason why the Claimant was late.  I accept the reasons he has given will acquit him of any fault until 6 July.  Appealing to the Employment Appeal Tribunal is a serious step and the Claimant has demonstrated to me that the steps he took were entirely reasonable.  Yet 12 days before the deadline, fully knowing the deadline, he was told he was on his own and should submit an appeal.  He did not.  On 17 July he sent a letter which was received on 19 July.  He attempts to blame the post.  He cannot do that.  Two days is the normal course of post: CPR6.7; EAT Rule 35(3).  He attempted at one stage to criticise the nature of EAT Rule 3(3) (42 days) but, acknowledging by his own words that he was arrogant to do so, he simply says that discretion ought to be more forthcoming.  The Court of Appeal may think that too, for it has noted the approach of the hardhearted denizens of the Employment Appeal Tribunal (see Woods v Suffolk [2007] EWCA Civ 1180 per Ward LJ) at the same time as upholding HHJ Peter Clark’s refusal to exercise discretion in that case.  

11.	The rules are strict.  Exceptional cases are rare.  This is not one.  Between 6 and 18 July I do not accept the Claimant’s evidence amounts to an explanation as to why there was no action.  There was a simple task here which was to lodge a Notice of Appeal against the decision of the Judge to strike him out;  it did not require very much from a graduate student.  As it happened quite a long Notice of Appeal was put in.  And I do not accept that the Claimant has any difficulty in word processing or in articulation of his claim.  He is a highly articulate writer and communicator.   He knew what he had to do:  he did not do it.  And I do not know why, even now, for I do not accept his multiple explanations post-6 July.  

12.	Both sides asked me to consider the merits of the case as is exceptionally done according to the judgment of Sir Christopher Staughton in Aziz.[2000] IRLR 111 CA.  I have done so.  In this case I have no fear that I am stopping a meritorious case in its tracks.  This case and its appeal have no merit at all.  The Employment Judge was correct to strike it out and to avoid having these three Respondents in a trial for he found that it was manifestly hopeless.  It is and I am doing no disservice to the Claimant by refusing this appeal and by sparing the Respondents further toil.

13.	Permission to appeal refused [reasons not transcribed].