London Borough of Wandsworth v Covent Garden Market Authority

Whether it was reasonably practicable to appeal within time is principally a question of fact for the tribunal. The expression means something between physical feasibility and mere reasonableness, assessed against the surrounding circumstances and the purpose of the time limit.

A party that knows of the time limit, has legal advice and is capable of lodging an appeal cannot ordinarily justify delay by choosing to await a related interview or possible further information. The possible use of improvement notices in criminal proceedings does not make a timely appeal impracticable. Strict statutory time limits are not relaxed merely because the respondent suffers no prejudice or because the overriding objective favours consideration of the merits.

The London Borough of Wandsworth served the Covent Garden Market Authority with 10 improvement notices under section 21 of the Health and Safety at Work etc Act 1974. The notices were served on 14 September 2010, and the statutory time for appealing expired on 5 October 2010.

The Authority lodged its notices of appeal on 14 October 2010 and applied for an extension under Schedule 4 paragraph 4(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It relied on the priority given to a pending Police and Criminal Evidence interview concerning an earlier workplace incident. Employment Judge Taylor granted the extension. Wandsworth appealed to the High Court on a point of law, contending that the decision was erroneous and perverse.

1. Appeal allowed. The decision granting an extension of time was set aside and refusal of the Authority’s application was substituted.
2. The test of whether it was reasonably practicable to present an appeal under Schedule 4 paragraph 4(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 has the same meaning as the equivalent test in unfair dismissal legislation. It is principally a question of fact for the Employment Tribunal. The approach approved in Palmer v Southend-on-Sea Borough Council [1984] 1 WLR 1129 applies. The question is whether presentation in time was reasonably feasible, having regard to the surrounding circumstances and the purpose to be achieved.
3. The Employment Judge found that the Authority was capable of lodging the appeals in time. It had legal advice, knew the time limit and had sufficient resources. Its delay resulted from a choice to prioritise the PACE interview and await possible information from it. The interview concerned a specific earlier incident and was not a general discussion of the improvement notices. The Authority could have lodged short notices of appeal and later amended them, sought an adjournment or withdrawn them.
4. The Employment Judge’s reliance on the possibility that the improvement notices might be used in criminal proceedings was unsustainable. An appeal could have been consistent with contesting any criminal proceedings and could not properly make timely presentation impracticable.
5. Schultz v Esso Petroleum Co Ltd [1999] 3 All ER 338 did not assist the Authority. That case concerned reliance on alternative remedies and disabling circumstances, neither of which applied here. Following Beasley v National Grid Electricity Transmissions UKEAT/0626/06/DM, absence of prejudice to Wandsworth was irrelevant to reasonable practicability. The strict time limit was not displaced by the overriding objective.
6. The costs of the High Court appeal were within the court’s discretion. The Authority was ordered to pay Wandsworth’s costs of the appeal, to be agreed. The order refusing costs below remained in place.

• High Court (Queen’s Bench Division): Appeal from the decision of Employment Judge Taylor dated 15 November 2010. The extension of time was set aside and refusal of the application substituted.