England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE RICHARDSON
UKEAT/0495/08/CEA, BAILII: [2010] UKEAT 0495_08_2306

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/01/2012

Lord Justice Elias :

1. This is an application for permission to appeal the Order of His Honour Judge Richardson, made on 23 June 2010. He was sitting alone in the Employment Appeal Tribunal and dismissed the applicant's appeal against the Order of Employment Judge Postle dated 18 June 2008. In that Order the Employment Judge had confirmed the strike out of the appellant's claim following non-compliance with an Unless Order. Mummery LJ refused permission on paper and the applicant has renewed her application orally before me. Whilst in my view she has a wholly unrealistic view of the merits of most of her points, she presented her case attractively and with skill, and with courtesy throughout.
2. By her Appellant's Notice, the appellant also seeks permission to appeal three further Orders. Deputy Master Meacher refused to set these down on the grounds that two of the Orders related to appeals arising out of separate judgments of the Employment Tribunal, and in the case of one of the Orders the appellant had not exhausted her remedies in the Employment Appeal Tribunal.
3. The applicant also requested that this decision of Deputy Master Meacher be reconsidered by a Lord Justice. Mummery LJ refused the application on paper and the applicant sought an oral hearing.
4. The factual background can be summarised as follows. The applicant was a German teacher employed by the respondent. She worked part time and her hours of teaching varied between 2 and 6 hours per week.
5. On 2 March 2007 she was dismissed by letter on grounds of gross misconduct. Prior to the current proceedings she had brought numerous pieces of litigation in the Employment Tribunal, the County Court, and the Queen's Bench Division of the High Court. She has regularly appeared before this court as an applicant in relation to these various proceedings.
6. The background to this particular application is somewhat complex and given the nature of all the matters now before me I need to set it out in a little more detail than would usually be appropriate in a permission application.
7. Following her dismissal the appellant lodged a claim with the Employment Tribunal on 2 June 2007. Her claims included unfair dismissal, denial of pension rights amounting to sex discrimination, breaches of the Equal Pay Act 1970, discrimination against her as a part time worker, unpaid wages, victimisation on the grounds of whistle blowing and harassment.
8. There was a pre-hearing review to decide a number of preliminary issues, and the Tribunal made a number of case management decisions on 11 March 2008. The relevant parts of that Order for the purposes of this application are as follows:-

(1) Under paragraph 1, the respondent was to disclose a contract of employment and relevant pay scale for a full time male lecturer in the Languages Department by 28 March 2008.

(2) By paragraph 2. the appellant was to provide the respondent with a schedule of loss stemming from the dismissal by 4 April 2008, and following the disclosure Order at paragraph 1, the alleged loss stemming from the breach of the Equal Pay Act.

(3) Under paragraph 3. each party was to prepare and serve a List of Documents relevant to the issues which they intended to rely upon at the full hearing by 18 April 2008, and

(4) by paragraph 7.2 witness statements were to be mutually exchanged by 13 June 2008.

9. The appellant applied for an extension of time for compliance with paragraph (2) of the Directions. She said she could not comply with her obligations as the employers had not fully complied with theirs. She was granted an extension of time on 2 May 2008 to 14 days from the date of the respondent's compliance with paragraph (1).
10. The respondent then wrote to the Employment Tribunal stating that it had complied as fully as was possible with that paragraph. Meanwhile the applicant had not in any event complied with paragraph (3) relating to the identity of relevant documents.
11. The Employment Judge wrote to the applicant on 12 May 2008, stating that she must comply with paragraph (3) and saying that the schedule of loss under paragraph (2) could be filed immediately, even if it did not take account of the claim under the Equal Pay Act.
12. Neither the List, nor the schedule of loss, were served. Accordingly, Employment Judge Postle made an Order of his own motion in the following terms:

"Notice under Rule 10(8) and/or 13 and/or 19, Employment Tribunal Rules of Procedure 2004 of an Order made by an employment judge under rule 10(2) and/or 13 and/or 18.

On the initiative of Judge Postle the following Order has been made. Under rule 12(2) any part affected by the Order may apply to have it varied or revoked. Such an application must be made before the date ordered for compliance in writing to this office and must include reasons for the application. A party who is legally represented is required by rule 11(4) to provide all the other parties in writing with the information there set out.

Order. So as to arrive on or before midday on 18 June 2008 the claimant is to comply with paragraph (1), (2) and (7.2) of the Tribunal's Order dated 11 March 2008.

Consequences of non-compliance.

And take notice that unless this Order is complied with the claim will be struck out without further consideration of the proceedings or the giving of further notice or the holding of any hearing."

13. The Order was undated but it was apparently received by the applicant on Saturday 14 June 2008. The applicant did not respond to that Order. In fact, the reference to paragraph (1) must have been a mistake since that did not impose any obligation on the applicant and there was no reference in the order to paragraph (3) which no doubt is what the Employment Judge intended to refer to when he referred to paragraph (1). In any event there could be no doubt as to the obligation to comply with paragraphs (2) and (7.2) and they were not complied with.
14. Instead the applicant wrote to the Tribunal and to the respondent. It was a lengthy 6-page typed script in which she asked for the Order to be varied. She contended that the Order was unfair and prejudicial and perverse. That letter was dated 16 June but it did not arrive with the Tribunal until the respondent's solicitor drew it to the attention of the Employment Judge on the afternoon of 18 June, that is after the midday deadline on that day specified in the Order. The judge read the letter and made the Order on 18 June in the following terms:

"The Tribunal - having made an Order requiring the claimant to provide certain information by midday 18 June 2008 – which Order contained a warning that in the event that the information was not supplied the claim would be struck out without further consideration of the proceedings or the giving of further notice or the holding of any hearing, and – noting that the specified date has passed without compliance with the Order or any request for an extension of time, now records that the claim has been struck out."

15. This was sent to the parties on 19 June. The judge gave brief reasons for the judgment, in which he stated that he did not accept that the time for compliance was too short. He said the Order was made because the claimant had not complied with previous orders in similar terms.
16. The applicant then sought a review of that decision and she also lodged an appeal with the EAT. That appeal was stayed pending a review of the outcome. That was conducted by Employment Judge Postle on 27 March 2009 and he produced a very detailed written judgment in which he confirmed the strike out Order. That was made in an Order dated 18 June 2009 and sent to the parties the following day. Subsequently, in circumstances I refer to shortly, there was a certificate of correction remedying a minor clerical error in that judgment.
17. Following the review, the EAT sought confirmation that the applicant wished to pursue her appeal and she indicated that she did. A preliminary hearing took place before His Honour Judge Ansell on 23 September 2009 in which he made certain directions. It was made plain at that hearing that it was the Order of 18 June 2008 and not the review judgment of 19 June 2009 which was the subject of appeal.
18. Some four weeks later, on 21 October 2009, the appellant lodged a Notice of Appeal against the review judgment, together with an application for an extension of time. In the alternative she wished to have a Notice of Appeal of the earlier decision amended so as to embrace the review judgment as well. This has in turn spawned further extensive litigation.
19. First, the application to amend was refused by the Deputy Registrar on behalf of the Registrar.
20. Second, the Registrar refused to extend time to challenge the review decision.
21. The Registrar's decision was in turn challenged, and that came before His Honour Judge Peter Clark for an oral hearing. He dismissed the appeal by an Order dated 4 March 2010. She sought a review of that decision. That application was refused on 11 March 2010 on the grounds that it had no reasonable prospect of success. The judge also directed that any application for permission to appeal should be directed to the Court of Appeal within 21 days.
22. Notwithstanding that direction, the appellant then sought an extension of time to appeal that Order to the Court of Appeal before the EAT. His Honour Judge Clark refused the application, and the applicant was informed on 25 March 2010. She sought a review of that refusal, and that in turn was refused by His Honour Judge Clark in an Order dated 14 April 2010.
23. Meanwhile, on 15 March 2010 the appellant's appeal against the Order of Employment Judge Postle came before His Honour Judge Richardson. He dismissed the appeal and in addition he considered and dismissed the appeal against the refusal by the Deputy Registrar of the application to amend the appellant's Notice. He directed that any application for permission to appeal was to be directed to the Court of Appeal within 21 days of the sealed date of the Order.
24. Despite that direction the appellant again applied by email to the EAT to be allowed to appeal the Order of 23 June 2010. His Honour Judge Richardson refused leave to appeal and again directed that any application was to be addressed to the court within 21 days of the sealed date.
25. Meanwhile, the applicant made an application to the Employment Tribunal to make minor and substantive amendments to the Employment Judge's review judgment of 19 June 2009. This was notwithstanding that she had been refused permission to appeal that judgment because it was out of time. Her contention was that it was inconsistent and unlawful for there to be two judgments of the judge, one dated 18 June 2008 when he had confirmed the original Order, and another dated 19 June 2009, which was the review judgment.
26. Employment Judge Gay refused to correct the review judgment and asserted that there was nothing unlawful about the two judgments remaining on the record.
27. The appellant then appealed these decisions. His Honour Judge Reid, sitting in the EAT, considered that they had no realistic prospect of success and that no further action would be taken in respect of them.
28. At this point, on 6 July 2010, the appellant filed an appellant's Notice in the Court of Appeal seeking permission to appeal the following Orders:

(1) the Order of His Honour Judge Richardson dated 23 June 2010.

(2) the Order of His Honour Judge Reid dated 16 June 2010 concerning the amendment to the review Order.

(3) the Order of His Honour Judge Peter Clark dated 4 March 2010 when he dismissed the appeal against the Registrar's decision that the appeal challenging the review decision was out of time, and

(4) the Order of His Honour Judge Peter Clark dated 14 April 2010 when he refused the application made by the applicant for an extension of time to appeal to the Court of Appeal.

29. The Civil Appeals' Office allowed the application in respect of the Order of His Honour Judge Richardson to go forward. That was in time. With respect to the Order of His Honour Judge Reid this was refused as premature because it was open to the applicant to pursue the matter before the EAT. The Orders of His Honour Judge Peter Clark were not allowed to proceed because they were made in the context of an appeal against a separate decision of the Employment Tribunal. Accordingly, there needed to be a separate appellant's Notice with a separate fee. That would, of course, necessarily be without prejudice as to whether those appeals were out of time.
30. Following the lodging of that appeal, there was yet a further stage in this litigation. The appellant sought a review of the decision of His Honour Judge Reid. That came before His Honour Judge McMullen for an oral hearing on 13 September 2010, at which she appeared in person. He made an Order in which he dismissed the application, whilst directing that certain minor amendments to the judge's judgment of 19 June should be made.
31. She then made an application to review that decision, which was refused by His Honour Judge McMullen in an Order dated 18 November 2010 on the grounds that the application was one made one day out of time and in any case was without merit. The applicant has sought to challenge that Order in her submissions before me also.
32. I will first deal with the contention that Master Meacher has wrongly refused many of these appeals to go forward. I consider that that aspect of the appeal has no merit whatsoever. The judge was, in my view, perfectly right to say that the Orders of His Honour Judge Peter Clark were made in the context of an appeal from a separate decision of the Employment Tribunal and accordingly they would require a separate appellant's Notice. It was made plain even by His Honour Judge Ansell in September 2009 that there was no appeal on foot with respect to the review decision. It was an entirely different and separate action. I should add in any event that it was plainly well out of time and would have no prospect of success even if it had been allowed to come forward.
33. Similarly, the application in respect of the Order of His Honour Judge Reid was rightly reviewed by Deputy Master Meacher. In fact that has now gone before and matters have moved on following the hearing before Judge McMullen. No formal application has been made with respect to that Order. In any event, so far as the applicant wishes to challenge the refusal to review that order, it was one day out of time. The judge also considered it to be without merit. There is no prospect of upsetting that decision and it is not properly before this court. It would also be a complete waste of the court's time to deal with it, given that it concerns the terms of the judgment of Employment Judge Postle in the review decision and that is not before the court in any event.
34. It follows that, in my judgment, the only matter that raises any serious issue in this case is the Order of His Honour Judge Richardson itself dated 23 June, in which he dismissed the appeal against the strike out Order itself.

The decision of HH Judge Richardson.

35. The applicant contended before the judge that the Employment Judge ought not to have struck out the proceedings pursuant to the Unless Order for a whole series of reasons. They fall into two main categories. Most of the grounds are directed to the question whether the Order was valid at all. But one of the grounds asserted that by making an application to vary, the applicant had complied with the Order in any event.
36. As to the invalidity arguments, it was first submitted that the Employment Judge was not entitled to make an Unless Order under the ET Rules at all without a hearing. His Honour Judge Richardson rejected that on the grounds that rules 13(1)-(2) and 19.1 applied and did permit this.
37. Second, it was said that the Unless Order was a breach of the provisions of the ECHR since there was no opportunity to make representation before it was made. The judge rejected that on the grounds that a party could apply to vary or extend time for compliance.
38. Third, the applicant contended that the Order was invalid because a copy had not been signed by the judge. The judge rejected that on the ground that although the Order had to be signed by a judge under rule 10(8), the copy sent to the parties did not.
39. Finally, there was a submission that the applicant had complied with the Unless Order by making the application to vary it. The judge held that that the application could not itself be compliance: a party who chooses not to comply, but to rely upon the application to vary, does so at his or her own risk. What the applicant should have done was to comply and at the same time apply to vary the Order.
40. As to the application to amend the Notice of Appeal so as to allow the applicant to appeal the review decision, the judge considered that it was not appropriate for the amendment to be allowed because it was challenging an entirely fresh decision. The judge added that even if he had had a discretion to allow the amendment, it would not be in accordance with the practice to allow it because since had it been formulated as a separate appeal, it would have been out of time. The same rules should apply to an amendment introducing a challenge to a fresh decision as they would if a separate appeal had been lodged.
41. The judge also considered that it was legitimate to make an Unless Order because of the history of non-compliance. The reference to paragraph (1) was a mistake but it was an obvious error and there was no obligation on the applicant to do anything pursuant to it. She was plainly in breach of paragraphs (2) and (7.2).

The grounds of appeal.

42. The grounds of appeal effectively challenge each of the matters which were raised and rejected by His Honour Judge Richardson. There is also a general complaint that the EAT has wholly failed to understand the authorities, the legislation, the international and domestic law, and Article 6 of the Human Rights Act. All this is beside the point and simply not sustainable. Nor is it particularised. The judge gave an extremely careful judgment when he went through all the rules and gave cogent explanation for his conclusions.
43. In my judgment, all the grounds except possibly one, which I deal with below, are wholly unsustainable, essentially for the reasons given by the judge. In my view, the grounds challenging the validity of the Order have no prospect at all of success and the judge was right to conclude that the Order was valid. In relation to the point that the claimant should have allowed the amendment to permit an appeal to be pursued against the review decision, the applicant sought to rely on the case of Opara v Partnerships in Care Ltd, EAT/0368/09, in which she said that HH Judge Clark had permitted an amendment precisely of the kind she was seeking. I have seen his Order and the subsequent decision of HH Judge Richardson in that case, and I do not think that the Order was quite the same. As I understand the case, the appellant was allowed to amend his grounds of challenge against a strike out order in the light of reasons given on review. This is plain, I think, from certain observations by the judge at the appeal: see paragraph 25. It is true that HH Judge Richardson then pointed out that in fact, although the appeal was against the original strike out Order, the parties were both focusing on the review hearing. In the light of that, and with consent of both parties, he said that he would treat the case as though there had been an extension of time allowing the appeal against the review hearing and the case proceeded on that basis. It was very much a pragmatic decision in the light of the way the parties had understood the appeal. No similar circumstances arise here. In any event, the fact that a judge in another case has chosen to exercise a discretion in a particular way does not mean that HH Judge Richardson had to exercise his discretion in the same way. In particular, there was no consent to any amendment here. The judge gave good and lawful reasons for refusing the amendment and they are not open to challenge.
44. The only matter which did give me pause for thought is the question whether the judge was right to say that in a case where the Unless Order is imposed by the judge of his own motion, and without any representation from the party against whom the order is made, the applicant who applies to vary the order should be obliged to comply with it in the meantime. The way in which the applicant puts her case is to say that by applying to vary, she complied with the Order. A possible alternative would be to say that the order is put into abeyance pending the determination of the application.
45. There are obvious difficulties with this argument. If an application to vary is tantamount to compliance then the applicant will have complied with the order simply by making the application without doing what the order requires. Alternatively, the judge will have to make a fresh order, perhaps simply repeating the original order but setting a new timetable. The effect is that the application to vary will necessarily, even if unsuccessful, lead to an extension of time, and that is so even if – as is the case here – no application for an extension of time was ever sought by the applicant.
46. These are difficult arguments to overcome. At the same time I recognise that there is force in the argument that the whole purpose of an application for variation or an extension of time is to allow the applicant to say that he or she should not be required to comply with the order, either at all or within the time limit specified. If the time for compliance is short, as in this case, there will be no opportunity for the Tribunal to rule upon that application before the time has expired and the purpose of the application will be frustrated. The party will have to do the very thing which he contends he ought not to have to do and which he has not had an opportunity to make representations about. This right to make representations is particularly important where the consequences of non-compliance are so draconian.
47. I would have considered that there is at least enough for the matter to go further but for the fundamental point, that even if the applicant's contention is correct, there can only conceivably be compliance (or possibly perhaps the order going into abeyance in some way) if the application to vary is made in time. In this case it had to be lodged by midday and was not received by the Tribunal until after that time. Once the time had expired then the effect of the Order was that it bit automatically. There is no question of a discretion at that point for the judge to exercise. Technically, if the judge considered an out of time variation – as it appears that he did - he would be in effect reviewing the decision. In short, the premise of the applicant's case is that an application to vary in time is as good as compliance, but the necessary condition that the variation should be received in time was not met. Once it is established that the Unless Order itself is valid, and for reasons I have given, I have no doubt that it was when made, the strike out was automatic. Thereafter, the only effective challenge could be by review, seeking relief from the sanction, but for reasons I have given, the attempt to re-open that decision on appeal was too late.
48. I recognise that the applicant will be very disappointed at this outcome. I would add that I think her case would in any event have been a difficult one to sustain and, of course, she would almost certainly have been liable for the costs of the other party had she unsuccessfully pursued a case on appeal. But if I had thought that she had a realistic prospect of success then the financial implications would have been a matter for her to consider. I make it plain that I do not dismiss this application for that reason.
49. I therefore refuse permission to appeal. I have dealt with this matter much more fully than I normally would on an application of this nature, partly out of courtesy to the applicant who plainly feels deeply aggrieved by the decisions which have gone against her.