QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF BOBCAT PLANT HIRE (UK) LIMITED||(CLAIMANT)|
|CONSTRUCTION INDUSTRY TRAINING BOARD||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR B JAFFEY (instructed by CMS Cameron McKenna) appeared on behalf of the DEFENDANT
Crown Copyright ©
"If any party to proceedings before any tribunal specified . . . [including employment tribunals] is dissatisfied in point of law with a decision of the tribunal, he may . . . appeal to the High Court."
"Subject to the provisions of this Schedule, the activities of the construction industry are the following activities insofar as they are carried out in Great Britain . . .
(f) the installation, testing, inspection, maintenance or repair of contractors' plant, or the letting out on hire of such plant or of scaffolding.
(h) any activities (other than those above-mentioned) being --
(i) related activities incidental or ancillary to principal activities of the construction industry."
"Machinery, plant or equipment of a kind used or intended for use in operations on the site of any building work or civil engineering work, but does not include lorries, ready-mixed concrete vehicles or other mechanically propelled vehicles mainly used for the carriage of goods on roads."
"Buying, selling, letting out on hire, testing, advertising, packing distribution, transport or other similar operations."
" . . . any one or more of the activities which, subject to the provisions of paragraph 2 of the Schedule to the industrial training order, are specified in paragraph 1 of that Schedule as the activities of the construction industry . . . "
Paragraph 3 of the order provides:
"For the purposes of this Order 'construction establishment' means an establishment engaged wholly or mainly in the construction industry during the necessary period."
"Although the company name appears to indicate the main activity is that of 'plant hire', it is in fact that of 'plant sales'. We are currently auditing the company accounts for the year ended 31 December 2001, and 'plant hire' only accounts for 14.5 per cent of the company's annual turnover. Therefore both our client and ourselves are of the opinion that any levy payable based on payroll costs during 2001/2002, should be apportioned accordingly, namely annual levy of £X (based on payroll costs of £115,620) x 14.5 per cent [ie they should only pay a levy on 14.5 per cent of the total payroll costs]."
"How many employees do you employee in the following activities: sales, installation, testing, inspection, maintenance and repair of plant, and hire of plant?"
"If multi-skilled, what percentage of your employees' time is taken up with the following activities . . ."
It then repeated those three categories. Unfortunately, the company did not reply to that letter and proceeded with its appeal without providing any further evidence or material as to what its activities were and what precisely its work force was engaged in doing during any given week of operations. I understand that the company intended to appear through its managing director in person at the hearing of the Tribunal listed on 3 March 2003. In the event, it did not appear for reasons which were not explained to the Tribunal and were not, indeed, in the primary documents before this court, and I was not minded to probe or receive any further information about that. No application for an adjournment had been made to the Tribunal and no written volume of material was served with the Tribunal by the company in lieu of a personal attendance. That was the case notwithstanding that the Board, who did not themselves attend but relied upon their volume of material indicating what enquiries had been made, had supplied all that material, together with written submissions, on 24 January 2003, some five weeks before the hearing on 3 March 2003. It is extremely unfortunate that, if the company wish to maintain its appeal and wish to get the Tribunal to engage with its submissions of disputed fact, it did not provide the Tribunal with any material from which it could have drawn assistance or could have enabled the Tribunal to have been satisfied that the company had discharged the burden of proof that rests upon them.