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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Whitbread v Lancashire Teaching Hospitals NHS Foundation Trust (Practice and Procedure : Appellate Jurisdiction / Reasons / Burns-Barke) [2011] UKEAT 0231_11_2311 (23 November 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0231_11_2311.html Cite as: [2011] UKEAT 231_11_2311, [2011] UKEAT 0231_11_2311 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEAL FROM REGISTRAR'S ORDER
For the Appeal from Registrar's Order (PA/0233/11/LA)
For the Appellant | MISS J WHITBREAD (The Appellant in Person) |
For the Respondent | MS RACHEL WEDDERSPOON (of Counsel) Instructed by: Hempsons Solicitors Portland Tower Portland Street Manchester M1 3LF |
For the Rule 3(10) Application (PA/0231/11/LA)
For the Appellant | MISS J WHITBREAD (The Appellant in Person) & MR STUART RICHIE (Appearing under the Employment Law Appeal Advice Scheme) |
SUMMARY
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Costs
While pursuing a review the Claimant did not lodge an appeal for 15 months. Discretion to extend time was refused. At the review the judgment was correctly affirmed. The appeal against the order for costs of the review was allowed to proceed to a full hearing.
HIS HONOUR JUDGE McMULLEN QC
Introduction
Review and correction
"7. The claimant confirmed that she had not appealed to the Employment Appeal Tribunal in respect of the Tribunal's decision. She said she had spoken to someone at the EAT and been asked about the date when the Judgment was entered in the Register. This was not stated at the end of the Judgment however the Employment Judge made enquiries within the Manchester Tribunal office administration and told the claimant that Judgments no longer have a reference to a date on which they are entered in the Register and pointed out that the booklet which goes out with the Judgment refers to a time limit for an appeal to the EAT running from the date on which the Judgment is sent to the parties, with that date clearly being shown on the Judgment in this case.
8. In her application for review the claimant mentioned in particular paragraph 45 on page 19 of the Judgment and the last sentence: 'The Tribunal satisfied not he had been intricately involved in the process in the circumstances.' There is clearly a typographical error here and the members agreed that what was meant at this point was: 'The Tribunal was satisfied that he had not been ... '. On the basis that this is a clerical error the Judgment is to be amended under Rule 37."
"Under the provisions of Rule 37 of the Employment Tribunal Rules of Procedure 2004 a clerical mistake in paragraph 45 of the judgment on page 19 of the last sentence shall be corrected such that the words 'The Tribunal satisfied not he had been..' shall read 'The Tribunal was satisfied that he had not been…'"
"37. The Tribunal was satisfied that Mr Fletcher had not acted in a way which no unreasonable employer would have done in the circumstances in his enquiry."
The late Notice of Appeal
"Although the Appellant claims there were legal errors she has now had the opportunity of a thorough review of her case. The Appellant was asked at the review why she had not appealed to the Employment Appeal Tribunal and stated that Employment Appeal Tribunal staff asked her when the case was entered in the register and the judgment carried no date for this. The Employment Appeal Tribunal is only interested in the date that the judgment and written reasons were sent to the parties as it calculates time from that date. It is probable that the Employment Appeal Tribunal staff would not be aware that there is an employment judgment register and it is most unlikely that they would ask this question. Significantly, she took the matter no further in any event. If she was in any doubt about how to appeal, there is help available from a number of sources and also on the internet. Merely putting "appeal from the employment tribunal" into the GOOGLE search engine will bring up links to the Employment Appeal Tribunal website with its comprehensive advice as the first result. She also had a copy of the Judgment booklet.
There comes a time when litigation is stale and it must be final. The Appellant chose not to appeal the judgment of the 29th September 2009 and cannot now complain if she believes that she should have."
Merits and discretion
The appeal against the review
"27. The claimant was clearly not happy that she lost her claim against the respondent but she seems to have had a fair hearing and nothing she has put in her written and/or oral submissions persuades us that her review application should succeed other than in respect of the minor slip which results in amending one sentence within the Judgment."
"28. Following the claimant's review application being dismissed the respondent has made an application for costs of the review on the basis that the claimant has acted unreasonably or the bringing of the review application has been misconceived. The claimant opposes that application for costs stating that under Rule 35 Employment Judge Creed considered the application initially and would have refused it had he considered there were no grounds for the decision to be revoked under Rule 34(3) or if there was no reasonable prospect of the decision being varied or revoked.
29. Against that background the respondent wrote to the claimant a detailed letter once the application had been made. It was sent without prejudice save as to costs but it set out in detail why the claimant's application would not, in the view of the respondent's solicitors, succeed and it told the claimant if she persisted with her application that there would be an application for costs. The claimant was therefore aware from the outset of the respondent's position if they succeeded they would apply for costs. That was ventilated at the hearing in August when the Employment Judge reminded the claimant of it because he had seen in the respondent's written submissions that a costs application would be made should the claimant not succeed and it was made at the end of the hearing in December.
30. The letter sent on 9 December 2009 by the respondent's solicitors, set out, in our view, a reasoned and reasonable response to the claimant's application for a review. The claimant has persisted involving a hearing over two days with a considerable volume of correspondence being generated whilst well knowing that if she lost there would be a claim for costs. The respondent is a public body and therefore feels it has a duty to try to maximise its income.
31. We have considered the application and consider that a costs order is appropriate on the basis that the claimant's review application was misconceived. We may and indeed have taken into account the means of the claimant, who tells us that she has an income that is exceeded by her expenditure but she has a house that she has lived in for 25 years which is an asset. We do however note it is lived in by her and her two children so we hope whatever order is made will not mean that the respondent will take any precipitate action that would prejudice that. But taking into account those means we take the view it is appropriate the claimant pays the contribution of one half of the respondent's costs of the review in the sum of £4,429."
"Insofar as the Appellant is challenging the reasoning of the original Tribunal decision that can only be pursued by an appeal against that decision: I understand that such an appeal has been lodged but it is out of time. The appeal against the review decision must be on the basis that that decision was itself wrong in law, for some reason other than the alleged defects in the main decision: in other words, the appeal cannot be used to piggyback an appeal against the main decision. I cannot see anything even arguably wrong with the review decision. The Tribunal went carefully and fairly through the Appellant's arguments. I cannot accept that two days were not long enough or that the absence of Judge Creed's notes made the process unfair."
Result