FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  183/04 FET
786/04

CLAIMANT:		Brian Morgan

RESPONDENT:		Alan Carmichael

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is to extend the time to enable the respondent to enter a notice of appearance to the claimant’s claim pursuant to Rule 9(1) and 2(e) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.  The respondent shall enter a Notice of Appearance within 14 days from the date of this decision, and in the event of non compliance with said time limit, the Tribunal shall exercise its powers in accordance with Rule 12 of the Regulations.   

Constitution of Tribunal:
Chairman (sitting alone):		Mr S A Crothers

Appearances:
The claimant was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by Gordon Bell & Son, Solicitors.
The respondent did not appear and was not represented.

1.	The issue before the Tribunal was whether the Tribunal should make an Order pursuant to Rule 9(1) and 2(e) of the Fair Employment Tribunal Rules of Procedure 2005 extending the time to enable the respondent to enter a notice of appearance to the claimant’s claim.

2.	The Tribunal was assisted by a previous decision of the Fair Employment Tribunal in this case dated 26 June 2006 and took the contents of same fully into account.  The Tribunal also considered the respondent’s written application for time to be extended to enter an appearance furnished to the previous Tribunal at the hearing on 26 June 2006. 

3.	The law in relation to this matter is contained in Regulation 9(1) and 9(2)(e) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Regulations”) Regulation 17 of the Regulations governs the conduct of pre-hearing reviews and enables the Tribunal to issue any Order in accordance with Rule 9 or do anything else which may be done at a Case Management Discussion.  The Tribunal also took into account the relevant sections in Harvey on Industrial Relations and Employment Law together with the cases of Kwik Save Stores 
Ltd -v- Swain and Others (EAT) [1997] ICR 49, and the subsequent case of Tull & Others -v- Severin and Another (EAT) [1998] ICR 1037.  The Tribunal also heard submissions from Mr McEvoy, BL, mainly on the points raised in the case of Kwik Save Stores Ltd -v- Swain and Others referred to above.

4.	Having carefully considered the foregoing and having taken into account all relevant factors, including the explanation for the respondent’s delay, the merits of the defence, (as indicated in the written application referred to in paragraph 2 above), and weighing and balancing them one against the other, and being mindful of reaching a conclusion which is objectively justified on the grounds of reason and justice and also balancing the possible prejudice to each party and whether the interest of justice demanded that the claim to the Tribunal be heard in the presence of all the parties, the Tribunal orders that the time limit be extended to enable the respondent to enter a notice of appearance to the claimant’s claim.  The respondent shall enter a notice of appearance within 14 days from the date of this decision.  In the event of non compliance with this Order the Tribunal will exercise its powers under Rule 12 of the Regulations which is set out hereunder as follows:-

Compliance with Orders and Practice Directions

“12 - (1)	If a party does not comply with an Order made under these Rules or a 
		Practice Direction, a Chairman or Tribunal - 

(a)	may make an Order in respect of costs or preparation time under Rules 34 - 41;  or

(b)	may (subject to paragraph (2) and Rule 18) at a Pre-Hearing Review or a hearing under Rule 22 make an Order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether”.

Chairman:

Date and place of hearing:	7 February 2007, Belfast.

Date decision recorded in register and issued to parties: