����AV

Settlement offer v. management evaluation: The respondent’s settlement offer was clearly and unequivocally marked “PRIVILEGED & CONFIDENTIAL FOR SETTLEMENT PURPOSES ONLY” (emphasis in the original). The indication “for settlement purposes only” in block capitals at the top of the letter left no room for interpretation as to the purpose of the letter, which was not to respond to the applicant’s request for a management evaluation. Inconsistency between article 8.1 (d) (i) of the UNDT Statute and staff rule 11.4 (a). In accordance with UNDT Statute art. 8.1, in order to be receivable, an application must be filed either within 90 days of the applicant’s receipt of the Administration’ response to his or her request for a management evaluation or within 90 days of the expiry of the relevant response period for the management evaluation if no response to the request was provided, whereas provisional staff rule 11.4 (a) requires that the application be filed by the earlier of these two dates. There is no question that the UNDT Statute is legislation of higher level than the Staff Rules and that in case of contradiction or inconsistency, the former must prevail over the latter. Accordingly, and regardless of staff rule 11.4 (a), the Tribunal considers that the time limit to file an application would start to run anew if the Administration were to respond to a request for a management evaluation after the expiry of the relevant response period for the management evaluation.Informal resolution and tolling of time limits: The UNDT Statute and provisional Staff Rules clearly set out that informal resolution may result in the extension of the deadlines for filing an application with the UNDT only if such informal resolution is conducted by the Office of the Ombudsman. Encouraging informal dispute resolution, as the General Assembly did and as the Tribunal often does, is not tantamount to saying that the legal consequences attached to any type of informal resolution should be the same no matter how it is conducted and who conducts it. Exceptional circumstances: In its judgment No. 2010-UNAT-029, El-Khatib, the UN Appeals Tribunal, like the UNDT in Samardzic et al. and in other cases, upheld the definition of “exceptional circumstances” adopted by the former UN Administrative Tribunal. A high likelihood of success on the merits is not an exceptional circumstance. In judicial proceedings, no distinction should normally be made between a party and its representative. Representation means that a party and its duly authorized counsel are regarded as a single entity. Except in cases where counsel would abuse his or her authority, all actions taken by counsel are to be attributed to the party he or she represents. In this case, the application is time-barred because of the failure of counsel for the applicant to file it within the statutory time limits. Whilst it is regrettable that the applicant must bear the consequences thereof, this is not an exceptional circumstance warranting the waiver of the time limits. Outcome: The application was rejected.