England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		5 June 2003

1. LORD JUSTICE MUMMERY: This an appeal against the decision of the Employment Appeal Tribunal on 12 July 2002, dismissing an appeal by Miss Kyamanywa ("the appellant") against the decision of an Employment Tribunal, which refused to review an earlier decision dismissing her claims for race and sex discrimination against the London Borough of Hackney ("the council").
2. On 25 September 1998 the appellant began proceedings against the council while she was still employed by them. Her claim was for race discrimination, as mentioned in box 1 of her IT1, but it is clear from later parts of the form, personally completed by her, that she was also seeking relief for sex discrimination.
3. The appellant had been employed as a social worker by the council since October 1986. She was a black African woman. Owing to problems which, she said, were attributable to back pain, she was away on sick leave from October 1997 and she was seeking from the council terms for early retirement. In her proceedings she alleged that she had been subjected to discriminatory treatment in a number of ways, in particular by the statements and actions of her manager. It is unnecessary to go any further into the details of her allegations, which are disputed by the council in their notice of appearance.
4. The appeal concerns a confusing procedural muddle which has arisen as a result of uncertainties about the representation of the appellant in her proceedings. There was confusion almost from the start. The IT1 form contains a box 3 which states, "If a representative is acting for you, please give details." The completion of this box is important because the tribunal need to be notified if notices and other documents are to be sent by them during the proceedings to someone other than the applicant, whose name, address and telephone number are given in box 2 of the IT1. The appellant wrote in box 3, as her representative: "Name to be provided by Unison in due course." Unison was her union.
5. A lot of the complications in this case have arisen because subsequently the appellant has occasionally used the services of a firm of solicitors, Balogun Kirvan. On one occasion they instructed counsel. But at other times the appellant acted in person, both at hearings and also when communicating with the tribunal. This is not an uncommon situation in the informal atmosphere of employment tribunals. No public funding is available for tribunal proceedings, but there are cases in which solicitors are willing to act when put in funds and even, when the funds have run out, without fee, in the expectation that their instructions will resume at a later stage when the client is able to put them in funds. This is a factor to be borne in mind when trying a unravel what has happened in this case.
6. The proceedings did not progress with the speed they should have done. There was a hearing in December 1999, attended by the appellant in person. It was conducted by the chairman alone. He directed, in his decision issued on 17 December 1999, that the hearing of the application would take place on 12, 13 and 14 April 2000. In his extended reasons express mention is made of the problems of representation, which the appellant (then the applicant) had. In paragraph 14 he said this:

"Nothing has been heard of the possible application to amend the Applicant's Originating Application to include a breach of contract claim. The application might be allowed or might not. One cannot know until the Application with the proposed amendment in writing is produced. The Applicant says she has not been able to pay her solicitor who requires a payment in advance to draft such an amendment."

The chairman continued in paragraph 15:

"However, it must be noted that this case started on 25 September 1998 and by the date it will be heard, it will be some 19 months old. The time must come when the case is heard and a decision made and that time should come as soon as possible."

7. The hearing directed for April 2000 was adjourned. The appellant became concerned about further delays in the hearing of her application. She wrote to the employment tribunal chairman on 2 June 2000 from her home address, Mt Pleasant Lane, London E5, a different address from that in Uxbridge given in her originating application. She said that she was writing with reference to her case. She wished to have it listed for hearing as soon as possible. She accused the council of deliberately delaying her case. She said that, as a result of their failure to progress the matter, she was suffering a great deal financially, emotionally and physically. She concluded her letter:

"I should be grateful if my case would be listed for hearing in order to bring this matter to an end as soon as possible.

I want to put on record that I am unable to continue this way."

A list of names at the bottom of her typed letter shows that copies were sent to Balogun Kirvan, the solicitors, as well as to the Director of Legal Services and Chief Executive of Hackney.

8. The tribunal responded by writing to Balogun Kirvan on 13 June, with copies to the council's legal services department and to the appellant at her new address. In the letter the tribunal said:

"I refer to the Applicant's letter of 2 June 2000. The Chairman has directed that this case will be listed for a full hearing for 3 days."

The notice of hearing was sent on 17 August 2000. It notified Hackney Legal Services and Balogun Kirvan, but not the appellant personally, that the application would be heard by an Employment Tribunal at Stratford on Wednesday 6 September 2000 to Friday 8 September 2000.

9. On 6 September nobody attended to represent the appellant and she herself was not there. The council was represented by a barrister. In extended reasons dated 22 September 2000 the tribunal explained why, in the absence of the appellant, they unanimously decided to dismiss her application. Having summarised the nature of her claim and the progress of the proceedings, they stated this in paragraph 5:

"Ms Kyamanywa did not appear on the hearing and the Tribunal clerk therefore rang her solicitors Messrs Balogun Kirvan. The clerk was told that the solicitors had no instructions from Ms Kyamanywa and no longer represented her. A subsequent attempt by the same clerk to contact Ms Kyamanywa on the telephone was unsuccessful.

6. In the circumstances Mr Heath representing the Respondents asked for the Application to be dismissed.

7. We have considered the Originating Application and the Notice of Appearance. We have also read the two previous decisions and noted that these proceedings were started as long ago as 25 September 1998. We do not know why Ms Kyamanywa is not present nor indeed whether she personally was aware of the hearing dates. However, her solicitors then on record would appear to have been aware that the case was due to start today. In the absence of any application for an adjournment we dismiss the Originating Application pursuant to Rule 9(3) of the Employment Tribunals Rules of Procedure 1993 as we do not think that Ms Kyamanywa can succeed where we have no evidence from her."

10. In the appeal bundle there is a manuscript note made on 6 September by the clerk, who had spoken on the telephone to Balogun Kirvan. The clerk was informed that a member of that firm had spoken to Mr John Hatrick, the solicitor who had dealt with the matter, who said that he had sent to the tribunal a letter withdrawing as representative of the appellant and that he had spoken to the respondent council to confirm this. No details or dates were given, as Mr Hatrick was not in the office. It was also noted that Mr Hatrick had represented the appellant at a previous hearing, but had received no instructions since.
11. Under regulation 9(3) of the 1993 Employment Tribunals Rules (which have since been superseded by new regulations in 2001), provision is made for the powers of a tribunal when a party fails to attend or to be represented at the time and place fixed for the hearing. Regulation 9(3) provides:

"If a party fails to attend or to be represented at the time and place listed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

12. In addition, regulation 20, which deal with notices, provides that:

"(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at --

. . . . . . . . . .

(c) in the case of notice or document directed to a party --

(i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (4), or

(ii) if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body's registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow;

.... .... ....

And a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.

(4) A party made at any time by notice to the Secretary and to the other party or parties (and, where appropriate, to the appropriate conciliation officer) change the address to which notices and documents are to be sent."

Among the notices and documents which are to be sent are documents which give notice of the time and place fixed for the hearing. Those are given under the provisions in regulation 5.

13. After the decision had been given, the appellant wrote on 15 September 2000 to the Secretary of the Tribunals at Stratford, saying this:

"I am the applicant in the above matter and I write to inform the Employment Tribunal that I have today withdrawn instructions from Messrs Balogun Kirvan solicitors (see attached copy letter). I have instructed the Hackney African Organisation to represent me. Dr AA Seray-Wurie is the Officer of the said Hackney African Organisation who is dealing with the matter.

I would be grateful if all further communications regarding my case are directed to him at the following address."

Attached was a copy of a letter of the same date, written by the applicant to Mr John Hatrick of Balogun Kirvan, saying that she has been unemployed for a very long time and has no income and therefore can no longer afford to continue to pay his fees, "and consequently it is with regret that I have to withdraw my instructions from your firm with immediate effect". She gave him the details of her new representative and asked him to send her file without delay.

14. An application was issued on 28 September 2000 to review the tribunal's decision of 6 September dismissing the originating application. Employment Tribunals have a discretion to review their decisions under regulation 11 of the 1993 regulations. 11(1) sets out the grounds on which the discretion may be exercised:

"(1) Subject to the provisions of this rule, a tribunal shall have power on the application of a party or of its own motion to review any decision on the grounds that -

(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party".

(d) relates to new evidence, which is not a ground relied on in this case.

"(e) the interests of justice require such a review."

15. The application for the review set out grounds which I read as referring to 11(1)(a), (b), (c) and (e) of regulation 11.
16. The first ground was that the decision was wrongly made as a result of an error on the part of the tribunal staff in contacting the applicant's former representatives, Messrs Balogun Kirvan, on the day of the hearing on 6 September 2000, when Messrs Balogun Kirvan had already informed the tribunal on 14 June 2000 that the appellant had not instructed them and that they would be grateful if the tribunal could forward a copy of all correspondence to the applicant directly at her address. That ground was not pursued at the review hearing. There were difficulties in pursuing it, not the least of which was that the tribunal did not have on its file the letter of 14 June 2000, which it was alleged had been sent to them by Mr John Hatrick of Balogun Kirvan. A copy of that letter in the appeal bundle says this:

"We thank you for your letter dated 13th June 2000. Unfortunately we have not been instructed lately by Mrs Kyamanywa, and accordingly, we would be grateful if you could forward a copy of all correspondence to Mrs Kyamanywa directly at the address below [and there is then given her E5 Mt Pleasant Lane address]."

No evidence from Mr Hatrick was given to the tribunal conducting the review to establish that such a letter was sent.

17. The grounds pursued were the later ones:

"2. The Applicant had no prior knowledge nor had she received Notice of the hearing of the 6th September 2000 leading to the Tribunal's Decision of the same date."

That is clearly ground 1(b).

"3. The Decision of the 6th September 2000 was made in the Absence of the Applicant. She was neither present nor was she Represented at the said hearing."

That ground is based on 11(1)(c). I omit paragraph 4, as I do not think any separate point is made on that, but paragraph 5 says:

"Under all the circumstances of the case, it would be very unfair and unjust for the Tribunal's Decision made on the 6th September 2000 dismissing the Applicant's Originating Application to stand. The Tribunal is therefore asked to review the said decision in order to change or revoke it."

Although that does not follow precisely the wording of 11(1)(e), I read that as referring to the interests of justice requiring a review.

18. The review hearing took place on 21 March 2001. The appellant was represented by Dr Seray-Wurie of the Hackney African Organisation. The tribunal heard evidence from the appellant. They accepted her evidence that she had instructed Balogun Kirvan to act on her behalf throughout. In their extended reasons, dated 29 March 2001, the tribunal referred to the various hearings that had taken place; to the correspondence, both to the tribunal and from the tribunal during June 2000; and to the notice of hearing sent to Balogun Kirvan and the council on 17 August. In paragraph 6 they said:

"Both parties accept that a notice of hearing sent to solicitors on the record amounts to a notification to the solicitors' client, even though that client is not so informed. The Tribunal file shows that such a notice properly addressed was sent to Balogun Kirvan and the Respondents. The Respondents, through their counsel Mr Heath, indicated that they had duly received the notice. The notice must be deemed to be properly served when sent by post unless we are satisfied by evidence that it was not in fact received. All we really have today is the letter from Balogun Kirvan dated 18 September 2000. We do not have any evidence from Mr Hatrick who wrote that letter and we are therefore not satisfied on the information before us that the notice of hearing was not in fact received. We also find it odd that a copy of the earlier letter allegedly sent to the Tribunal offices [that is a reference to the letter of 14 June] was not provided by Mr Hatrick and we are not satisfied that such a letter was ever sent. As already stated, there is no sign of such a letter in the Tribunal file. If, however, such a letter was sent, in our view Balogun Kirvan should have informed their client prior to coming off record that they intended to take such a step. They certainly should have informed their client that such a letter had been written to the Tribunal offices and they should have sent her a copy of it. We leave on one side the question of whether the solicitors were entitled to determine their retainer in such a way. We also note that Ms Kyamanywa did not disinstruct them until after the hearing on 6 September 2000."

That last reference is to the letter of 15 September, sent by the appellant to Balogun Kirvan.

19. That paragraph deals with the ground of application in 11(1)(b). The tribunal held that notice of the hearing had been received by the appellant, because that was deemed to be the case by reason of the notice having been sent to Balogun Kirvan as her authorised representative. That is the main part of the review tribunal's decision.
20. As for the other two grounds, they were dealt with very briefly, if at all. In paragraph 7 of their extended reasons the tribunal dealt with ground 11(1)(c) "absence of the party" simply as follows:

"Accordingly, as the second ground of application in effect depends on the first, namely the reason for non-attendance was the non-notification, the application for a review fails."

No more is said about that ground.

21. The Human Rights Act point raised by Dr Seray-Wurie under Article 6, complaining that the appellant would not have had a fair trial, was rejected. The tribunal said:

"Historically many litigants have suffered because of the faults of their representatives and Courts and Tribunals have left them make such claims on those representatives as they think fit. To allow a party to proceedings to put the other party to a second hearing because that party's representative has let him or her down would be unfair to the other party. As a general proposition both sides' interests must be taken into account when dealing with human rights. In Lindsay v Ironsides Ray & Vials [1994] ICR 384 the Employment Appeal Tribunal stated that failings of a party's representatives would not generally constitute a ground for review -- and that to allow such arguments would be to follow a dangerous path. We respectfully agree."

22. In the final paragraph of their decision, the review tribunal explained why they rejected an application made during final submissions by Dr Seray-Wurie for an adjournment so that he could call Mr Hatrick to give evidence. The application was opposed. The tribunal said that Dr Seray-Wurie had been instructed by the appellant back in September 2000 and had had over six months to consider what evidence to call on her behalf. They considered that there must be finality in litigation in the interests of justice, and that it was time that a line was drawn under the case. So they refused the adjournment even though the applicant had agreed to pay the costs thrown away.
23. The appellant appealed to the Employment Appeal Tribunal. A preliminary hearing was presided over by Mr Recorder Underhill QC, who directed that the case should proceed to a full appeal hearing. That took place on 12 July 2002 before a tribunal presided over by His Honour Judge Peter Clark. The Employment Appeal Tribunal dismissed the appeal, holding that there was no error of law on the part of the Employment Tribunal in its review decision.
24. The focus of the Employment Appeal Tribunal's decision was on a rather different point from that brought forward on appeal to this court. They said, in paragraph 16 of the judgment, given by Judge Clark, that there was only one point: whether the tribunal conducting the review had erred in law in refusing Dr Seray-Wurie's application for an adjournment during closing submissions so that Mr Hatrick could be called to give evidence at the review stage. Not surprisingly, the tribunal concluded that there had been no impermissible exercise of discretion by the tribunal in refusing that adjournment. It was pointed out that it was incumbent upon the applicant and her representative to establish a ground for review, in this case, it is said (paragraph 22 of the judgment) under rule 11(1)(b), which is the non-receipt of notice of the proceedings leading to the decision. No reference is made in the judgment to other points which have emerged in the course of applications to this court for permission to appeal and on the appeal itself today.
25. The arguments on this appeal, I have to say, have disclosed that there was a confusing and unsatisfactory situation in relation to the appellant's representation. Mr Panton, in his excellent submissions, provided a history, pointing out how initially the originating application said that a name would be provided through Unison and how, on subsequent occasions, the applicant had used Balogun Kirvan as her solicitors. He submitted, however, that it was reasonably clear from the end of 1999 that the applicant was appearing in person before the tribunal, was corresponding with the tribunal and was receiving from the tribunal copies of letters which were sent to Balogun Kirvan. He submitted that in those circumstances the applicant had a legitimate expectation that she would be informed personally by the tribunal of the date of the hearing of her case. She had not received such a notice from the tribunal. No copy had been sent to her of the notice of 17 August, even though at an earlier stage the tribunal had copied to her a letter that they had sent to Balogun Kirvan.
26. He then addressed the question of what the tribunal knew at the hearing on 6 September. He said that it was clear that the tribunal knew from the telephone call, which the clerk had had with Balogun Kirvan, that that firm had no instructions and no longer represented the applicant. They also knew, from their own files, that the applicant had appeared in person at an earlier hearing and had written to the tribunal and had had correspondence copied to her by the tribunal when the tribunal corresponded with Balogun Kirvan. They also knew, he submitted, that the notice of the hearing had not been sent to her personally.
27. He submitted that the tribunal had fallen into error in failing to exercise its discretion in the matter. I think at different times in his submissions he was referring to different discretions. The first was the discretion to adjourn the case on 6 September. But, as Miss Maclaren pointed out, this point has never been raised before, either at the review hearing or in the grounds of appeal or skeleton arguments on the application for permission. Mr Panton's point was that under the wording of regulation 9(3) the tribunal itself may of its own motion grant an adjournment when no-one attends and no representative appears. He said that the wording of the decision of the tribunal on 6 September indicated that the tribunal was under the impression that it could not grant an adjournment on that date because no application had been made. He referred to what was said in paragraph 7, which I have already quoted.
28. I am unable to agree with Mr Panton on this point. It seems clear from the fact that the tribunal expressly referred to the provisions of rule 9(3) of the rules of procedure that it was well aware of the extent of its powers in relation to adjournments and, even if this were a point which Mr Panton was allowed to raise at this late stage, I do not think that it is a good point. I do not think that there was any self-misdirection by the tribunal that it was unable to grant an adjournment because no application had been made by a party who was not present to make it. I agree with Miss Maclaren that it is now too late in any case to raise such a point.
29. The other discretion to which Mr Panton was referring was that given the tribunal in the exercise of its power to review its decisions. That is a wide discretion which can be exercised on the various grounds to which I have already referred. On this point, I am of the view that the tribunal did fall into error. It is clear from the application for a review that it was being sought not only on the ground that no notice had been received but also on the ground that the decision was made in the absence of the applicant, and on the ground that the interests of justice required a review. In my judgment, the tribunal, in concentrating on the non-receipt of notice ground, failed to take account of circumstances that were relevant to the exercise of their discretion on the grounds of absence of party and of the interests of justice.
30. In my judgment there was no error of law in the decision of the review tribunal regarding non-receipt of notice. On that point I agree with the submissions made by Miss Maclaren on behalf of the council. It is clear, reading the extended reasons of the review tribunal, that they made findings of fact on that point without any error of law. The applicant accepted in her evidence to them that she had instructed Balogun Kirvan to act on her behalf throughout. They had instructed counsel to appear in the tribunal on her behalf at an earlier hearing; they had corresponded with the tribunal as her solicitors; and the tribunal had corresponded with them and sent notices and documents to them. The evidence adduced on behalf of the applicant did not establish that either the applicant or Balogun Kirvan had ever given any notice to the tribunal under regulation 20(4), indicating that the tribunal should now send notices and documents to her personally rather than to the firm of solicitors who had started to act for her.
31. Mr Panton made the point that in the originating application no address had been given in box 3, the box for the name and address of a representative; and that, in the absence of any evidence that the name and the address of Balogun Kirvan had been given, the tribunal was only entitled to send notices and documents to the appellant personally at her address. I am unable to agree with that submission. It is clear from the fact that Balogun Kirvan had been acting on her behalf over a period that the tribunal had on its files their name and address as her representative and there was no evidence that they had ever been given any different information, either by the applicant or by Balogun Kirvan.
32. The tribunal concluded, rightly in my view, that the notice of 17 August had been sent to Balogun Kirvan as the authorised representative of the applicant. That was therefore deemed to be good service of the notice under regulation 20(4) even if the applicant had never been informed personally of the date of the hearing. The tribunal were entitled to find that it was not established on the evidence that Balogun Kirvan had ceased to act as the applicant's authorised representative at the date of the service of the notice of hearing. On the contrary. As the tribunal pointed out, there was evidence (from the letter of 15 September 2000) that she had not withdrawn instructions from that firm until after the hearing on 6 September 2000. Further, I am of the view that the tribunal were entitled to find that it had not been established by the evidence that Balogun Kirvan had sent to the tribunal the letter of 14 June 2000, which was not in the tribunal's files. It had also not been established that Balogun Kirvan had failed to receive the notice sent to them and the council by the tribunal on 17 August.
33. Thus far I agree with the submissions of Miss Maclaren on this appeal. Where I am unable to accept her further submissions is in the treatment by the review tribunal of the other two grounds on which a review was sought. I have already quoted from paragraph 7 of the extended reasons of the review tribunal. It simply says:

" . . . the second ground of application depends on the first, namely the reason for the non-attendance was the non-notification from which they concluded that the application for a review failed."

I think that that is too narrow a reading of the ground of review based on absence of a party, that is 11(1)(c). It is quite possible for a ground of review to fail on 11(1)(b) but still to succeed on 11(1)(c). It is not difficult to think of circumstances in which a party may have received, or be deemed to have received, notice of proceedings, but be absent when the decision is made for a very good reason: some emergency or change of circumstances which had arisen making it impossible or excessively difficult for the applicant to be present at the hearing.

34. The treatment of this ground also ignores the point that it is has never been suggested that the appellant was actually aware of the date of the hearing. It is clear that the reason why she was not at the hearing was because she did not know it was taking place, either because she had not been sent a notice, or because the solicitors, who were sent a notice, did not tell her.
35. It is important to treat this ground, the absence of a party, in conjunction with the other ground of the interests of justice, which was also not properly addressed by the review tribunal. In considering that ground, one would take account of the party's absence and all other surrounding circumstances. In my judgment there were other surrounding circumstances which were not taken into account by the review tribunal and which, if they had been taken into account, would have led to a grant of the review.
36. What were those circumstances? The first was her absence from the hearing and the reasons for it. She was not at the hearing because she did not know that it was taking place on that date. Because she was absent from the hearing, she was not in a position to give evidence, which would have enabled the tribunal to decide the case on its merits. The circumstances in which she was absent indicate that there was considerable uncertainty and confusion affecting everybody about her representation in the proceedings. The tribunal knew that the solicitors believed on 6 September that they no longer had instructions from her. They knew from previous communications and hearings that the appellant had appeared in person and had corresponded with them in person. They had sent copies to her at her address of correspondence which they had had with her solicitors. The tribunal also knew, from the passage which I have read from the extended reasons of 15 December 1999, that the appellant had had problems with representation because of the requirement that further payments should be made on account for the solicitor's services and she was unable to make them.
37. The tribunal knew that the appellant had not lost interest in the proceedings. She had written a very firm letter to the tribunal on 2 June asking for the matter to be listed as soon as possible and making accusations against the council that it was they who were responsible for delaying the progress of the hearing and the determination of her claims.
38. There also seems to have been confusion between the appellant and Balogun Kirvan about the position. Balogun Kirvan, as I have indicated, were under the impression that they had no instructions. The appellant seems to have been clear, at least on 15 September, that until 15 September they were her solicitors. She accordingly wrote them a letter disinstructing them.
39. In this confusing situation it is not surprising that the events have become as complicated as they have. It may have been advisable for the tribunal to have granted an adjournment on 6 September but, as I have already mentioned, I do not think that they can be criticised for exercising the power they did, not to grant an adjournment.
40. The upshot is, however, quite clearly that the applicant is left in the position in which her case, which she was pressing to have heard on the merits, has not been heard. It has not been heard because she was not present at the hearing. She was not present at the hearing because, even though her solicitors were served with it and she was deemed to have been served about it, she did not know about it. Weighing up all these matters, I also take into account that, on balance, the prejudice to the applicant on being refused a review is greater than the prejudice to the council in the review being granted. If the review is not granted in this case the applicant will have lost forever the opportunity to have her complaints of discrimination investigated on their merits. That, in my judgment, would not be in the interests of justice. I fully take account of Miss Maclaren's points about the importance of the principle of finality in legal proceedings, but that is a principle which, in my judgment, has more application to cases which have been decided on their merits and then attempts are made to reopen them at a later stage, than cases which have not been decided on their merits.
41. For those reasons, I would allow this appeal, holding that the Employment Tribunal, on the conduct of the review, had erred in leaving out of account circumstances which were relevant to the exercise of their discretion under 11(1)(c) and (e) of the Employment Tribunal's regulations.
42. I would add a postscript. Even though the procedures in the employment tribunals are less formal than those in the courts, it is always important for the parties to clarify with the court the names and addresses of themselves and their representatives with whom the court should communicate. If there is any change in the position, the person who has been acting as a representative should write promptly to the tribunal to say that they have now ceased to be the representative and their former client is acting in person; and, if a client decides to act in person, the client should also write to the tribunal, saying that that will be the position for the future, and giving their current address and details so that the tribunal know how to communicate with them. I would also add that, in cases of uncertainty, it would be advisable for tribunals, who are unclear as to what the position is as to representation, to clarify it with the parties, and, while the position remains unclear, to write both to the person who they suppose to be the representative and to the lay party. Following this course may minimise the risk of the sort of confusion which has unfortunately occurred in this case.
43. For the reasons I have given, I would, in allowing the appeal, remit this matter to a freshly constituted Employment Tribunal to hear the appellant's complaints on their merits.
44. LORD JUSTICE CARNWATH: I agree, though with some sympathy for the London borough which has incurred considerable expense and inconvenience as this case has dragged on, through no fault of its own.
45. I would add one word on the use of expressions such as solicitors "on the record" or "coming off the record". These expressions are familiar and appropriate in the context of court proceedings, where there are detailed rules governing when solicitors are to be treated as acting or ceasing to act for a party: see CPR part 42. There is no direct parallel in the 1993 rules, no doubt in recognition that, as my Lord has said, in the tribunal consistent legal representation is much less likely to be the norm. The question under the rules was whether the solicitors were in fact "authorised representatives" at the relevant time.
46. I agree, however, with my Lord that, on the evidence before the review tribunal, it was entitled to find this issue against the applicant. I also agree entirely with his postscript as to the appropriate measures for parties and their representatives to take in practice to keep the tribunal informed.
47. LORD JUSTICE SIMON BROWN: For the reasons given by Lord Justice Mummery, I too would allow the appeal and make the order which he proposes.

ORDER: Appeal allowed. Case remitted to a freshly constituted Employment Tribunal for rehearing. No order as to costs, save detailed assessment of the appellant's costs.

(Order not part of approved judgment)