In the case of Haydar v Pennine Acute NHS Trust, the Court of Appeal was asked to provide an extension of time to allow the litigant in person (who was legally represented in the Court of Appeal) to appeal the decision of the original Employment Tribunal.
The litigant in person had originally posted his appeal package to the Employment Appeal Tribunal on 12 May 2014, approximately 2 weeks before the appeal deadline of 27 May 2014. The litigant in person then waited until 1 July 2014 to check whether the Employment Appeal Tribunal had received his appeal package. When he was told by telephone that it had not and that it had presumably been lost in the post, he re-submitted it. It was then received on 7 July 2014, but the Employment Appeal Tribunal declined to extend the deadline for receiving his appeal. The litigant in person appealed this decision.
In his judgment in the Court of Appeal, Lord Justice Underhill explained in detail how, following the outcome of a decision from the Employment Tribunal, the parties receive a letter setting out the decision, incorporating a link to a document called “The Judgment”, which explains the process for bringing an appeal. This document may be either viewed online or requested by calling the administrative office of the relevant tribunal. Lord Justice Underhill held that the letter referring to The Judgment document “is quite explicit that [the document]* must be read”.
The litigant in person alleged that it was unreasonable to expect him to go online to read this document. Also, by his own admission, he had also brought several appeals before the Employment Appeal Tribunal on previous occasions.
Lord Justice Underhill therefore held that:-
“Of course the initial loss of the package was not [the litigant in person’s]* fault, but his delay thereafter in checking what had happened to it was...culpable.”
In other words, to come to a court or tribunal for redress, a claimant must first do everything possible to help him or herself.
On the face of things, this decision may seem to be unfair on the litigant in person. However, it is worth considering the background of this claim, in which it was clear that the litigant in person was well-versed in bringing appeals before the Employment Appeal Tribunal, but had waited more than 5 weeks before checking whether the tribunal had received his appeal.
Whilst it could be argued that a litigant in person with less experience may have allowances made for them, it is unclear whether such an argument may succeed, principally as the guidance in The Judgment document was produced in the wake of a similar claim to this one in 2003. Lord Justice Underhill also acknowledged that the booklet was sufficiently “user friendly” for it to be considered reasonable for those without legal representation to either read it online or to ask for the tribunal to send it to them.
Finally, whilst it is wise for a litigant to have legal representation (where possible), this case also makes it clear that, if a litigant in person does proceed alone, he or she must still take the time to read the information that the court or tribunal sends out in order to provide him or her with assistance (and not just in the field of Employment Law claims).
*Our emphasis added
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