Jersey Unreported Judgments

Appeal - an appeal against judgments of 10th and 21st January 2019.

[2019]JRC154

Royal Court

(Samedi)

7 August 2019

Before     :

Sir William Bailhache, Bailiff, sitting alone.

 

Advocate V. S. Milner for the Appellants.

Advocate D. J. Read for the Respondent.

judgment

the bailiff:

1.        This is an appeal against judgments of 10^th and 21^st January, 2019, entered against the Appellants in favour of the Respondent in the Employment and Discrimination Tribunal.  The judgment of 10^th January was obtained by default and the judgment of 21^st January was a refusal by the Deputy Chairman to set aside the default judgment on the basis that the Tribunal had no power to do so.  The Deputy Chairman dealt with the application by the First Appellant as an application for permission for leave to appeal, which was declined.  The Appellants therefore come before this Court on appeal, leave having been granted by the Deputy Bailiff on 7^th February, 2019.  The issues which he considered arose on the papers before him were:-

(i)        Whether and to what extent the Tribunal has the power to set aside a judgment taken in default in circumstances such as the present where the existence of the proceedings was not adequately brought to the attention of the Respondent; 

(ii)       Whether or not the decision of the Tribunal not to set aside the default judgment was wrong in terms of being so unreasonable on the facts as to amount to an error in law;

(iii)      Whether or not the First Appellant was properly served;

(iv)      Whether or not the Second and/or Third Appellants were properly served.

2.        In giving leave, the Deputy Bailiff ordered the matter be referred to the Master for further directions as to the conduct of the appeal.  Those directions were made on 11^th March, 2019, the Master requiring the Appellants to apply for a date to be heard with a time estimate of one day, requiring the Appellants within 21 days from the date fix hearing to file a copy of their contentions and all authorities on which they wished to rely, the Respondent to file her contentions and additional authorities within 21 days of the Appellants' filing, with affidavit evidence if so desired and further provision that the Appellants could file affidavit evidence in reply.  An extension of time was given to the Respondent on 2^nd May to file her contentions and initial authorities. 

3.        The appeal was heard on 1^st August, 2019, when I allowed the appeal against the Deputy Chairman's decision of 21^st January, 2019, and remitted to the Tribunal the application of the First Appellant to set aside the default judgment of 10^th January, with reasons reserved.  This judgment contains those reasons.  The position in relation to the Second and Third Appellants is addressed at paragraphs 4 and 5 below. 

4.        I should deal with a number of preliminary points.  The first is that the parties have agreed that, subject to the leave of the Court if required, a consent order should be entered to include these provisions:-

(i)        The default judgment dated 10^th January, 2019, be set aside in so far as it lies against the Second and Third Appellants. 

(ii)       The claims against the Second and Third Appellants be recorded as withdrawn, subject to the Respondent's ability to pursue the complaints about the Second and Third Appellants against their employer. 

(iii)      The judgment dated 21^st January, 2019, be amended pursuant to Articles 32(3)(c) of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 ("the Procedure Order") so that the names of the Second and Third Appellants be anonymised throughout that judgment and that there be a direction to the Judicial Greffier to update the register of judgments accordingly; and

(iv)      There be no order as to costs in respect of the Second and Third Appellants' appeals. 

5.        Those were agreed orders, and it appears that although I was being asked on the papers to deal with the matter, the Master has already made a consent order and I merely record that event. 

6.        There is a further matter which needs to be dealt with at this stage.  The First Appellant is a company within the Ladbrokes Coral group of companies ("the Group").  The Respondent is an employee of a different Group entity, namely Ladbrokes (Channel Islands) Limited ("the Employer").  The claim filed by the Respondent in the Tribunal wrongly named the First Appellant as the respondent.  The Employer ought to have been named as the correct respondent to the claim in the Tribunal.  The First Appellant and the Employer agree that if the default judgment is set aside, they will take no issue in relation to the identity of the correct respondent in the Tribunal, and the Respondent in this Court (Ms Lawrie) will be entitled to amend her claim form out of time to name the Employer as the respondent before the Tribunal.  This seems to me to be a sensible approach and I endorse it, although formal entry of such a change requires action before the Tribunal. 

The Claim

7.        The claim form before the Tribunal gave the address of the First Appellant as Imperial House, Imperial Drive, Rainer's Lane, Harrow, Middlesex HA2 7JW.  It makes plain that the Respondent asserted she was employed by the First Appellant but at a different address, namely 23A La Colomberie, St Helier, Jersey.  The Second and Third Appellants are named as respondents before the Tribunal and the address for them is given as the same address as the First Appellant, namely Imperial House.  The allegation contained in the claim was that there had been an act of discrimination on the grounds of the Respondent's disability.  In the information contained in the claim form she makes various allegations against the Second and Third Appellants.  Her claim was for £1,500 financial loss in relation to medical bills she was incurring and the fact that her holiday had been ruined, and £5,000 for hurt and distress.  The details of that claim are unnecessary for the purposes of this judgment. 

8.        The Second Appellant is also an employee of the Employer, working as an administrator.  The Third Appellant is an area manager for the Group.  Her work is based in England, but at the relevant time she had responsibility for areas which included Jersey. 

9.        There does not seem to be very much doubt about some of the core facts.  The claim form was sent to the address given by the Respondent for the First Appellant, but that address was in fact out of date.  It was not sent to the Employer, nor was it sent to the Second and Third Appellants.  That claim form was ultimately received by the senior employee relations adviser for the Group.  Owing to a mistake in connection with the time for responding and a subsequent understanding that the Respondent had dropped her Tribunal claim and was engaging with internal processes of the Group, no action was taken to lodge a response to the claim on behalf of the Appellants.  The claim form was indeed never sent to the Second and Third Appellants.  In the absence of a response from any of the Appellants, judgment was entered by the Tribunal on 10^th January, 2019, and that judgment was published online the following day.  Lawyers acting for the First Appellant drew this to the attention of the First Appellant, and an application was made for the default judgment to be set aside.  This led to the Deputy Chairman's decision on 21^st January to treat that application as an application for leave to appeal as in his judgment he considered that a determination under Article 12 of the procedure order was a judgment, and not a case management order, and was therefore not amenable to reconsideration in the interests of justice under the Tribunal's powers of case management. 

10.      I note that the application to have the default judgment set aside confirmed that the First Appellant received the letter and claim form on 19^th December, 2018, and that an employee of the First Appellant considered that the matter could be dealt with upon her physical return to the office after the Christmas break on 3^rd January, 2019.  However, she was advised by another employee of the Group that the Respondent was pursuing an internal grievance procedure and therefore not intending to pursue the Tribunal claim; hence she took no steps on her return to the office. 

11.      The first question therefore is the issue of law as to whether or not the Tribunal had power to set aside a default judgment.  The Tribunal was established by the Employment (Jersey) Law 2003 ("the 2003 Law").  Article 89 of that Law provides as follows:-

"Procedure

(1)       The Tribunal shall have, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in the Royal Court and, without limiting the generality of the preceding provisions of this Article, may -

(a)        issue a summons to any person (including a party to the proceedings) requiring the person to appear at the time and place mentioned therein to testify to all matters within the person's knowledge relative to the subject or proceedings before the Tribunal, and to bring with him or her and produce any document, book or papers that the person has in his or her possession or under his or her control relative to such subject;

(b)        administer oaths and examine any person on oath, affirmation or otherwise;

(c)        require a party in writing to furnish to the Tribunal a written answer to any question if it considers -

(i)         that answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and

(ii)        that it would be likely to assist the progress of the proceedings for that answer to be available to the Tribunal before the hearing,

and appoint the time within which the answer is to be furnished;

(d)        notwithstanding the offences in Article 95(1)(b) and (1)(c)(ii), draw an adverse inference from the failure, without reasonable excuse of any witness to attend or of any person to produce any documents, when so requested;

(e)        for the purposes of making a determination, take independent expert advice.

(2)       In this Article "document" includes information held in electronic form."

12.      Article 91 of the 2003 Law in its material parts provides as follows:-

"(2)     Part 2 of the Arbitration (Jersey) Law 1998] shall not apply to any proceedings before the Tribunal.

(3)       The Minister may by Order make such provision as appears to the Minister to be necessary or expedient with respect to proceedings before the Tribunal."

13.      Two points might be drawn from the terms of Article 91 - first of all the reference to Part 2 of the Arbitration (Jersey) Law 1999 being disapplied shows that the legislature gave thought to what parts of other legislation ought to have no relevance to the proceedings before the Tribunal.  We can draw from that provision an inference that it was not intended that the Royal Court Rules would apply directly - had it been contemplated that they would, it would have been necessary to disapply at least some of them.  Secondly, although by paragraph (3) the Minister had power to make provision by order for the proceedings before the Tribunal, in fact he did not do so until the Procedure Order.  By that date, of course, the Discrimination (Jersey) Law 2013 had come into force giving the Tribunal jurisdiction over both employment and discrimination matters.  I was informed by Advocate Milner that between 2005 (when the 2003 Law came into force) and 2016, a brief set of regulations had been adopted by the Tribunal itself in order to set out the procedure which was to be followed, but they did not provide anything like a full set of rules. 

14.      The Procedure Order, being promulgated by Ministerial Order, has no explanatory note or report attached to it.  It is silent on whether it was intended to affect any other legislation.  Both the parties before me agreed that Article 2 of the Procedure Order was relevant.  That Article deals with the overriding objective which is to enable the Tribunal to deal with cases fairly and justly, ensuring the parties are on an equal footing, dealing with cases proportionately, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay so far as is compatible with proper consideration of the issues and saving expense. 

15.      The Procedure Order makes provision at Articles 4 to 6 for starting a claim before the Tribunal.  The process is that, on receipt of the claim, the secretary of the Tribunal rejects it if it deviates from the form supplied by the Tribunal office to an extent that materially affects the substance, or is likely to mislead, or does not contain the name and address of every complainant and every respondent.  Article 5(2) provides a requirement on the Chairman or Deputy Chairman to reject a claim, or part of it, if he or she considers that the claim, or part of it, is one which the Tribunal has no jurisdiction to consider or is in a form which cannot sensibly be responded to or is otherwise an abuse of process. 

16.      Part 3 of the Procedure Order provides for notification of a claim to respondents within 5 working days of receipt of the completed claim form, and for a requirement for a response on the approved form within 21 days.  There is provision at Article 9(2) for an extension of time for filing a response.  The procedure is that the claim form is served on the Respondent not by the claimant but by the secretary to the Tribunal.  By Article 12(2), the Chairman must decide, inter alia, where no response is received from the Respondent on the expiry of the time limit for making such a response, whether on the available material, a determination can properly be made of the claim or part of it and the Chairman or Deputy Chairman must issue a judgment accordingly. 

17.      That is what happened in the instant case.  For the reasons explained in paragraph 9 above, no response was received by the Tribunal in the prescribed time, and on 10^th January, judgment was entered on the issue of liability.  

18.      The Procedure Order contains no provision at all for setting aside a judgment by default.  Such a procedure exists under Rule 11(2) of the Royal Court Rules 2004, which is in these terms:-

"Power to set aside judgments by default

(1)       Any judgment by default may be set aside by the Court on such terms as to costs or otherwise as it thinks fit.

(2)       An application under paragraph (1) must be made by summons supported by an affidavit stating the circumstances under which the default has arisen.

(3)       "Judgment by default" does not include any judgment to which the defendant has given notice in writing to the Court that the defendant submits."

19.      There is a similar provision under Rule 29 of the Petty Debts Court Rules 2018, which is in these terms:-

"Setting aside or abandonment of judgment by default

(1)       Any judgment by default may be set aside or abandoned by order of the Court on terms as to costs or otherwise agreed by the parties or decided by the Court.

(2)       An application for an order under paragraph (1) must be made by summons and, if made by a defendant, must be supported by an affidavit stating the circumstances in which the default has arisen and confirming that the defendant has a good defence to the proceedings."

20.      It is to be noted that both under the Royal Court Rules and under the Petty Debts Court Rules the application to set aside a judgment by default must be supported by an affidavit stating the circumstances under which the default has arisen.  In the Petty Debts Court, the requirement is stricter, because the affidavit must also set out that the defendant has a good defence, albeit there is no explicit requirement under the Rules that the affidavit set out what the defence actually is. 

21.      Although much of the primary and secondary legislation in Jersey is modelled on English legislation, that does not help in relation to the present issue, namely whether the Tribunal has jurisdiction to set aside a judgment obtained by default.  That is because the English rules do contain that provision - indeed they are generally much fuller than the Procedure Order. 

22.      It is apparent from what I have said that the default judgment is frequently given on the papers without a hearing - "the papers" in this context mean the claim form.  This is in line with the overriding objective and the process in that connection is not criticised. 

23.      At this stage it is important to note that if the claimant gets the name of the employer wrong, or provides the wrong address to the secretary of the Tribunal, it is by no means certain in theory that the right respondent will hear of the claim being made, whether at all or in the proper time.  Indeed in theory a claimant could deliberately give the wrong address in order to secure a judgment in the Tribunal.  Such a process is clearly one which is capable of abuse and common sense dictates that there should be some process by which the Tribunal can undo a default judgment, if only to make the point that the claim has never been properly served.  Of course there may be other cases where it would be absolutely equitable to set aside the judgment obtained by default because of the particular circumstances engaged - at an extreme level, the employer's agent dies on the way to the post office and does not file the defence, but one does not have to be anything like as extreme as that in order to recognise the general point. 

24.      Advocate Milner accordingly submitted that on 21^st January the Deputy Chairman had gone wrong by finding that he had no discretion to set aside a default judgment.  When it came to the question as to what I should do about the error of law which he made in that respect, she submitted that I should exercise my own discretion to set aside the default judgment because:-

(i)        The Respondent had sent the claim, through the secretary of the tribunal, to the wrong party at the wrong address;

(ii)       As a result 6 days were lost between 11^th and 17^th December. 

(iii)      Because it was Christmas and the response was due by 31^st December, the loss of time was particularly acute. 

(iv)      The belief that the internal grievance procedure had been engaged by the Respondent was genuine and there were therefore good grounds for the employer to have been confused at the twin processes - the internal grievance procedure and the claim before the Tribunal. 

25.      Thus it was said that I should exercise my discretion to set aside the default judgment. 

26.      The Tribunal obviously has no inherent jurisdiction by itself, in the sense that it is a creature of statute, but both Advocate Milner and Advocate Read accepted that the effect of Article 89(1) was to confer a statutory inherent jurisdiction on the Tribunal - the Tribunal "shall have, as regards ... other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in the Royal Court...". 

27.      Advocate Read submitted that it was important to focus on the word "necessary" in the passage I have set out above.  If there was an alternative process which would work to prevent the kind of injustice I have described over service of the form at the wrong address, the appeal must fail, because that process could equally have been adopted here.  He accepted that I had to construe the 2003 Law and the Procedure Order in accordance with the Human Rights (Jersey) Law 2000, and unless it was obviously incompatible, I could read down the legislation to make sure that it operated in a human rights compliant way. 

28.      The ingenious argument which Advocate Read then proposed was that the Appellant could and should have filed an application for an extension of time to file a response to the claim, even though the default judgment had been delivered.  Any time period could be extended and there was no reason why the Appellant should not have applied for extra time, and subsequently filed a defence if that time was allowed.  Thus it was that he said that even assuming Article 89 applied, it was not necessary to bring into the Tribunal the right to set aside a default judgment. 

29.      I reject that submission, attractively though it was presented.  It seems to me, at first glance, that it would be a complete answer to an application to extend time to say that there was no point in doing so.  Judgment had been given and the purpose of an extension is to set a procedural framework to enable the Tribunal to reach a proper conclusion on the contested claim.  Where the conclusion had already been reached and judgment had been given, there was no point in an extension.  Advocate Read submitted that it would lead to the setting aside of a default judgment; so it would, but only if the extension were given.  Furthermore, even if the process was followed as he suggested, the Tribunal would still be faced with the problem of having to set aside the earlier judgment.  If it had power to set aside the earlier judgment after an extension of time had been given, there seems to me to be no obvious reason why it should not have power to set aside the default judgment without an extension of time being sought and given.  That would be consistent with the overriding objective. 

30.      In my judgment, it is necessary, even on Advocate Read's argument but anyway more generally, that the Tribunal should have the power to set aside a judgment given by default.  The power to do so arises from Article 89(1) of the 2003 Law.  It also arises as a necessity through the application of the Human Rights (Jersey) Law 2000 - the Tribunal is required to determine the civil rights of the parties before it in accordance with Article 6 of the Convention and it is necessary that it should have the ability to set aside a default judgment in order to cover those cases where judgment has been given but there are good equitable reasons for concluding that it should not stand. 

31.      The next argument advanced by Advocate Read was that if, contrary to his first submission, the Tribunal did have the power to set aside a default judgment, it was bound to exercise that judgment strictly in accordance with the Royal Court Rules, those Rules governing the exercise of that power in the Royal Court.  This, however, he said was the position before the enactment of the Procedural Order.  That Order established new subordinate legislation which by implication, he submitted, repealed the application of the Royal Court Rules in applications to the Tribunal. 

32.      I reject that submission.  The argument requires us to construe the Procedure Order as a set of complete rules, and furthermore to assume that the Royal Court Rules would apply directly if there were no 2016 order.  As a matter of practice, the fact that there was previously a set of tribunal drafted regulations on procedures which were not the same as those set out in the Rules suggest that the Tribunal did not consider itself bound to operate in accordance with the Royal Court Rules and in any event, in my judgment it was not required to do so.  I do not see the Procedural Order as a set of complete rules - they are obviously incomplete because they do not provide for setting aside default judgments - and, for the avoidance of doubt, I accept Advocate Milner's submission that Article 89 of the 2003 Law does not have the effect of applying the Royal Court Rules as subordinate legislation.  As I said at paragraph 13 above, there is an inference from Article 91 that this is not the case.  What Article 89 says is that the Tribunal has the powers of the Royal Court.  It does not have to follow precisely the rules of the Royal Court and furthermore the overriding objective should be applied so as not to require a party to appeal to the Royal Court when something obvious has gone wrong before the Tribunal, for example in relation to service. 

33.      Advocate Read then argued that there was no evidence before the Deputy Chairman on 21^st January setting out an arguable defence.  There was a statement that there was a defence, but it is impossible to know what it was.  Contentions put before the Royal Court do not amount to evidence and in any event the Royal Court could only look on appeal to the evidence that was before the Tribunal at the time the impugned decision was taken.  He submitted that on the evidence before the Tribunal there was no arguable defence.  That being so, it did not matter what the Tribunal would have done had it considered the right question, and, absent any evidence there was therefore only one way of dealing with the appeal which was to dismiss it. 

34.      The accompanying submission was that, if I were satisfied that the appeal ought to succeed but did not accept there was only one answer, I ought not to take a decision in relation to the default judgment myself but instead should remit the matter to the Tribunal.  He encouraged me to add a direction to the Chairman or Deputy Chairman of the Tribunal to the effect that she or he should decide the application to set aside the default judgment only on the evidence which was before the Tribunal on 21^st January. 

35.      In my judgment, the Deputy Chairman made an error of law in concluding that he did not have jurisdiction to set aside the judgment obtained by default.  He had that jurisdiction as a result of Article 89 of the 2003 Law.  It follows that his decision on 21^st January to treat the application to set aside the default judgment as though it were an application for leave to appeal involved an error of law.  Accordingly, I allow the appeal against the judgment of the Deputy Chairman of 21^st January, which I order to be set aside. 

36.      The next question is what flows as a result of that decision. 

37.      This question was considered in Voisin -v- Brown [2007] JLR 141 at paragraphs 59 et seq.  At paragraph 61, Birt DB said that if there were only one proper answer to the question which was posed, the court on appeal should make the decision and proceed accordingly.  Where however there was more than one possible outcome, the court in Voisin decided it was appropriate to remit the matter to the Tribunal.

38.      I note that this approach was approved by the Court of Appeal in JT (Jersey) Limited -v- Wood [2016] JCA 183.  Bompas JA said this:-

"164. We have considered carefully what should be the disposition of the case in the light of these conclusions.  In principle it is for the Tribunal, and not the Royal Court (or for that matter this court), to determine as a factual conclusion whether or not a particular dismissal is unfair.  This was pointed out by Sir Michael Birt in his judgment in Voisin -v- Brown, at paragraph 61, after he had referred to English authority on the point.  We have also been referred to the case of Jafri -v- Lincoln College [2014] EWCA Civ 449 for a further articulation of the same principle as applied in England and Wales.

165. On the other hand Sir Michael Birt said also that it would be permissible for the Royal Court to make its own determination of the question of unfairness or otherwise of a dismissal if there were in law only one proper answer to the question, so that an answer to the opposite effect would be perverse.  We agree with this approach." 

39.      There are currently no rules before the Tribunal establishing what its approach ought to be to the exercise of its jurisdiction to set aside a default judgment.  It is clear from the position before the Procedure Order 2016 that the Tribunal did develop its own rules and, given its jurisdiction conferred by Article 89 of the 2003 Law, it seems to me that it is better that the Tribunal do so than that I, relatively unfamiliar with the procedures before the Tribunal, make my own determination of what the procedure ought to be.  It is apparent to me that there is more than one answer potentially to the application to set aside the default judgment.  Indeed the answer may depend upon the extent to which evidence is admitted before the Tribunal when the matter is next considered.  Given its more informal approach to procedural matters as set down in the Procedure Order, it would not surprise me if the view were expressed that affidavit evidence was not necessary to set aside a default judgment, and that a letter of the kind which was sent in the present case to the Deputy Chairman would be sufficient for the exercise of a jurisdiction to allow the default judgment to be set aside.  But I emphasise that that is just one answer to the issue and it will be a matter for the Chairman or the Deputy Chairman to consider what the procedure ought to be and how it should be applied in relation to what has happened in this case.  That procedure will no doubt be developed having regard to the fact that many of the litigants before the Tribunal are unrepresented. 

40.      Accordingly I allowed the appeal and struck down the decision of the Deputy Chairman to refuse the application to set aside the default judgment.  It is open to the First Appellant to bring that application back before the Tribunal and the Chairman or Deputy Chairman will make her or his own assessment of it. 

41.      Advocate Milner made it plain that even if she were to be successful, there would be no claim for costs against the Respondent in relation to this appeal, and accordingly no order for costs is made. 

Authorities

Fiona Lawrie v Ladbrokes Betting [2018] TRE 189

Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016.

Employment (Jersey) Law 2003

Arbitration (Jersey) Law 1999

Discrimination (Jersey) Law 2013

Royal Court Rules 2004

Petty Debts Court Rules 2018

Human Rights (Jersey) Law 2000

Voisin -v- Brown [2007] JLR 141

JT (Jersey) Limited -v- Wood [2016] JCA 183