31. I therefore dismiss the appeal against the Registrar’s decision not to extend time for the rule 3(10) application in relation to the costs appeal.
The liability appeal
32. As I have said, whereas the costs appeal was lodged in time, the accompanying liability appeal was 219 days out of time. It has therefore not been considered by a Judge under the rule 3 sifting process. Instead, by an order stamped on 5 January 2021, the Registrar refused the application to extend time.
33. The Registrar’s written reasons refer to the strict approach to which I have referred above, and to the United Arab Emirates case, approved by the Court of Appeal in Green v Mears [2018] EWCA Civ 751, which directs this Tribunal to ask what is the explanation for the default, whether the explanation provides a good excuse and whether there are circumstances justifying the exceptional step of granting an extension. The Registrar, in short, was not satisfied that this test was met on the facts.
34. The high hurdle is if anything made higher by the length of the extension sought and by the fact that the liability which the Appellants seek to overturn is for the sum of only £296.90.
35. The Notice of Appeal itself puts forward the following arguments for the Appellants:
1. The liability appeal was prompted by seeing the Respondent’s reconsideration application dated 31 October 2019, in which she said that she had neither written nor read the witness statement on which she relied at the liability hearing and in which she contradicted her oral evidence given at that hearing in some respects.
2. The late appeal would cause no prejudice to the Respondent because she herself had appealed against the liability judgment.
3. It is in the public interest to entertain the liability appeal because there is little case law on the family exception, and the law in this area could be applied in a way which would encourage discrimination.
4. In the liability appeal she would rely on grounds of appeal alleging (1) a failure to apply relevant law, (2) procedural irregularities (the EJ knew that the Appellants had made a complaint about the handling of the case but did not recuse herself; at the start of the hearing the Respondent handed the EJ a letter which the Appellants were not shown; the EJ relied on the Respondent’s statement which the Respondent later admitted not having read, and on the contract of employment which could be amenable to rescission for misrepresentations by the Respondent; the EJ relied on various conclusions of fact without giving the Appellants the chance to challenge them; the claim succeeded on a NMW point which was not in the original form ET1), (3) bias, revealed by treating the Respondent as vulnerable and needy and the Appellant as wealthy and independent and (4) perversity, by disregarding the evidence on the key issue.
36. On 16 March 2020 the Appellants lodged further written submissions in support of their application for time to be extended, with supporting materials. In particular they relied on events which occurred after the appeal deadline had expired on 24 April 2019, numbered from A to H as follows:
A. In her reconsideration application on 31 October 2019 the Respondent admitted that she had neither written nor read her original witness statement. This was consistent with her conduct at the oral hearing where she had disavowed parts of the statement.
B. She submitted new evidence for the costs hearing in August 2019 consisting of relevant WhatsApp messages.
C. Although the Appellants had wished to put the matter behind them, they found out in June 2019 that the Respondent was attempting an appeal, in January 2020 that she was bringing a new ET claim against them and in February 2020 that she had published material about them on her website.
D. The costs hearing in August 2019 and the costs judgment of 18 October 2019 revealed the full extent of the EJ’s bias against the Appellants.
E. The costs judgment made it unclear whether the EJ had read the letter provided by the Respondent at the start of the liability hearing (see 34.4 above).
F. In June 2019 and January 2020 other tribunals or courts rejected allegations made by the Respondent against other employers.
G. In January 2020, following a referral to the Legal Ombudsman, the Appellants’ former representatives admitted failures on their part, including giving wrong advice, and offered compensation. They had assessed the chances of a liability appeal at 51% but had said the costs would be prohibitive.
H. Some relevant evidence about family life was located after 28 November 2018 but within the appeal deadline.
37. In oral argument Mrs Griffiths developed and expanded on these points. Much of what was said was directed at the merits of the liability appeal. As I have already explained, that it is of limited weight and in any event cannot be determined at this preliminary stage. The relevant point which was made most clearly and emphatically was that whilst the Appellants did not appeal against the liability judgment in time because, having taken advice, they wished to put the matter behind them, nevertheless the appeal was triggered by the later discovery of new information, in particular about the Respondent disowning her original witness statement and about the EJ having been aware that a complaint had been made. The Appellants also pressed their point, discussed above, about reliance on the GDPR.
38. When careful consideration is given to all of these arguments, it is apparent that the Appellants were in a position to make a proper decision on whether to appeal against the liability judgment, in time. The grounds of appeal, summarised at 34.4 above, were matters almost all of which were known to the Appellants at the relevant time. For example, although they place great reliance on the Respondent’s apparent retreat from her witness statement (a point which I suspect may not bear the weight which they seek to place on it, given the reliance of the EJ on oral evidence at the liability hearing), part of that retreat had already happened at the liability hearing. There was scope, at that time, to challenge the employment contract (another point which, in my view, was very unlikely to have prevented an award under the NMW Regulations) which the Respondent at the liability hearing said was a “fake”. The EJ’s awareness of a complaint having been made was revealed when she announced her liability decision on 10 January 2019. In short, I am not satisfied that any real “smoking gun” emerged at a later date which really changed the picture, and which could justify the very lengthy extension of time which is sought.
39. I have also considered whether failures by the Appellants’ representatives could provide a real excuse for not appealing in time. As the Registrar explained in her decision on this application, it is clear that the Appellants had received the EJ’s written reasons, had dispensed with the services of their representatives and were in a position, acting for themselves, to lodge a reconsideration request by no later than 27 March 2019, 28 days ahead of the appeal deadline. They have stated that they were advised (whether rightly or wrongly I cannot say) that the appeal would have a better than evens chance. I have no reason to think that the advice they were given about the likely costs of an appeal was wrong.
40. The reality, in my judgment, is that the Appellants changed their mind about wishing to appeal. I do not criticise them for that. Their change of mind may well have been motivated by hostile behaviour against them on the part of the Respondent. However, the strictness of the appeal time limit should not be relaxed because of a mere change of mind.
41. Even if the receipt of new information had been capable of justifying the extension, a further difficulty would be that the Appellants had received all or almost all of the significant information by 31 October 2019. Despite already being months out of time for their appeal, they did not lodge it for a further 28 days. Beyond the fact that they are busy people, no explanation is offered for this further delay.
42. My overall conclusion is reinforced by some of the points made above in relation to the costs appeal. The GDPR point is misconceived. The merits of the appeal carry little weight. An appeal against the lawfulness of the award of £296.90 is not calculated to remedy the Respondents’ wider grievances. This appeal cannot be allowed to proceed just because the Respondent obtained indulgent case management orders below or because she, herself, is trying to proceed with an in-time appeal.
43. In my judgment the circumstances are far from justifying the extension sought, and the application must be dismissed.
44. As a final comment, it is notable that the bad feeling in this case has been magnified by steps taken, in particular the disclosure of information, outside the litigation. The parties must take their own advice on their legal rights and remedies relating to such conduct. However, it is hard to imagine a more effective way of escalating and prolonging the dispute between them.
Conclusion
45. Both applications to extend time must be dismissed.
BAILII: