FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 77/16 FET
CLAIMANT: Patrick Joseph Breslin
RESPONDENT: Margaret Loughrey
DECISION ON A REVIEW
The decision of the Tribunal is that decision entered in the Register and issued to the parties on 16 January 2017 be revoked and the proposed response of the respondent to the claimant's claim presented to the Office of the Tribunals on 14 February 2017 is now accepted, having extended the time to do so; and the matter will proceed in accordance with the relevant Rules of Procedure.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
The claimant was represented by Ms M Rodgers, Barrister-at-Law, instructed by Babingtons Solicitors (on telephone link).
The respondent was represented by Mr R Smyth, Barrister-at-Law, instructed by Oliver Roche & Company, Solicitors (on telephone link).
1. The claimant presented a claim to the Tribunal on 31 August 2016, which was subsequently given the case reference numbers set out above.
By letter dated 20 September 2016, the Tribunal informed the respondent that the claimant's claim had been accepted and that, if she wished to respond to the claim made against her, she must present her response to the Office of the Tribunals within 28 days from the date of the said letter. In particular, she was informed that, if her response was not received by 18 October 2016 and no extension of time had been agreed by an Employment Judge, she would not be entitled to resist this claim. By letter dated 1 December 2016, the respondent's solicitor wrote to the Office of the Tribunals informing the Tribunal that they had been instructed in the matter and, in particular, seeking an extension of time in which to file a response. By letter dated 9 December 2016, the respondent's solicitor was informed by the Office of the Tribunals that the application for an extension of time to present a response, having been received outside the relevant time-limit, could not be considered unless it explained why there had not been compliance with the time-limit and it was accompanied by a completed response.
2. By letter dated 16 January 2017, the Tribunal wrote to the respondent's solicitor informing him that a default judgment had been issued under Rule 7 of the Fair Employment Tribunal Rules of Procedure 2005, as amended.
The said default judgment, which was entered in the Register and issued to the parties on 16 January 2017 stated:-
"The time for presenting a response having expired on 18 October 2016 and no response having been presented to the Tribunal in accordance with the Rules of Procedure, I find that the respondent:-
(i) unfairly dismissed the claimant; and/or
(ii) breached the claimant's contract of employment by failing to give him notice pay and/or holiday pay due to him under his contract of employment; and/or
(iii) failed to provide the claimant with an itemised pay statement; and/or
(iv) failed to give the claimant written reasons for his dismissal and/or
(v) discriminated against the claimant on the grounds of sex and/or religious belief and/or political opinion.
Any remedy to which the claimant is entitled will be determined at a hearing, notice of which will be issued shortly."
In the letter dated 16 January 2017, the respondent's solicitor was informed about the right to apply for a review of the decision on the grounds set out in the said letter.
3. By letter dated 27 January 2017, the respondent's solicitor sent a completed response to the claimant's said claims, which said letter was not received by the Tribunal until 13 February 2017, due to a failure to use the appropriate postage. However, by way of e-mail, the said letter and response was received by the Tribunal on 30 January 2017. However, although the said response referred to the issue of the response being out of time and provided an explanation for same, it did not ask for a review of the said default judgment, pursuant to the Rules of Procedure.
As a consequence, by letter dated 6 February 2017, the Tribunal wrote to the solicitor for the respondent stating that since there had been no application for a review of the said default judgment, pursuant to Rule 29 of the Fair Employment Tribunal Rules of Procedure, a response form had been referred to an Employment Judge who had decided that the response could not be accepted because a default judgment had been issued by the Tribunal; and, in the absence of any such application to review the said default judgment and/or any appeal, resulting in the revocation of the said default judgment, the said default judgment stood and the response could not therefore be accepted. By letter dated 10 February 2017, the respondent's solicitor stated that the application, enclosed with the letter dated 27 January 2017 in effect incorporated a request for review having regard to the first paragraph at Section 6.1, in which the respondent had sought an extension of time.
In the circumstances, by letter dated 17 February 2017, the solicitor for the respondent was informed that the Employment Judge had directed that what was stated in Section 6.1 of the proposed response, as confirmed in the letter dated 10 February 2017, should be treated as an application for a review of the said default judgment, dated 16 January 2017, pursuant to Rule 29 of the Fair Employment Tribunal Rules of Procedure.
4. In light of the foregoing, a Notice of Hearing was issued for Thursday 9 March 2017. Such a hearing is normally required to be conducted by an Employment Judge in public, unless all the parties to the proceedings consent in writing to the review without a hearing. Such consent was not given. However, in view of the personal difficulties of the claimant's counsel to attend in person, it was agreed, in writing, by the representatives of both parties that this review hearing should be conducted by the use of the Telephone Conference facilities, having regard to the terms of the overriding objective and in the interests of justice; and, in the circumstances, I so directed.
5. Rule 29, insofar as relevant and material, of Fair Employment Tribunal Rules of Procedure states:-
"(1) A party may apply to have a default judgement against or in favour of him reviewed. An application must be made in writing and presented to the Office of the Tribunals within 14 days of the date on which the default judgement was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
(2) The application must state the reasons why the default judgement should be varied or revoked. When it is the respondent applying to have the default judgement reviewed, the application must include with it the respondent's proposed response to the claim, where that has not been received by the Office of the Tribunals, an application for an extension of the time limit for presenting the response and an explanation of why Paragraphs (1) and (5) of Rule 4 were not complied with."
There was no dispute, in the above circumstances, that any issue of time arose in relation to this application.
In Pendragon PLc t/a D C Bramall (Bradford) v Copus  ICR 1671, the employer was out of time filing a response to the claim and the Tribunal issued a default judgment. The employer applied to revoke the default judgment and for an extension of time for it to submit its response; but the Judge was not satisfied by the explanation for not filing the response in time and refused to set aside the default judgment.
On appeal Burton P, sitting alone, stated that such cases involve a balance and that an Employment Judge should always consider the following:-
"(a) the employer's explanation as to why an extension of time was required: the more serious the delay the more important it is that the employer provides a satisfactory and honest explanation, but the time-limits for a respondent do not go to jurisdiction;
(b) the balance of prejudice: with the employer, if his request for an extension of time was refused, suffer a greater prejudice than that which the complainant would suffer if the extension of time were granted?
(c) the merits of the defence: if the employer's defence is shown to have some merit, justice will often favour the granting of an extension of time - otherwise the employer might be held liable for a wrong which he had not committed."
Burton P also noted that, although the said Rule did not refer to the need for Employment Judges to exercise their discretion justly and equitably, they are obliged to deal with cases justly under the overriding objective and that the principles in Kwik Save v Swain apply to the present Rules as well as to the previous Rules. In Pestle and Mortar v Turner [UKEAT/0652/05] the employer had no good reason for not entering a response (it was posted late) but the EAT accepted that that was only one factor and the other factors - the prejudice suffered by the respondent, that there was an attempt to fax the response form within time, and that the actual delay was only two days - were more important.
6. The issue of the merits of a defence are clearly very relevant when considering whether to set aside the said default judgment.
Similar issues arise in the High Court in relation to applications to set aside a regularly obtained judgment.
In McCullough v BBC  NI 580, Girvan L, as he then was, held that the primary consideration was whether a defendant had merits justifying the matter going to trial. He held:-
"If it is clear that if a defendant has in reality no defence to the plaintiff's claim the setting aside of the judgment would be unjust to the plaintiff and would not be unjust to the defendant since it would merely delay the enforcement of the plaintiff's undoubted rights and send to trial an indefensible case. If on the other hand there is a real trialable issue between the parties justice will normally require that the matter should be allowed to trial."
In addition, Girvan J stated:-
"In determining if there is a real trialable issue between the parties I respectfully differ from Sir Roger Ormrod for I see no compelling reason why the courts should be required to form a provisional view of the probable outcome if the judgment were to be set aside."
The decision in McCullough has been followed in Tracy v O'Dowd & Others  NIQB 48 and also more recently by Weatherup J, as he then was, in the case of Bank of Ireland (UK) PLc v Jones  NIQB 93.
7. In this matter, having considered the terms of the proposed response of the respondent, I am satisfied that the respondent has set out a defence which has some merit and/or sets out a real triable issue. Indeed, properly, in my judgment, the claimant's representative did not seek to suggest otherwise. However, the claimant's representative emphasised the failure to comply with the relevant time-limits and the consequential delay in this matter. However, she acknowledged that there was no real and/or forensic prejudice to the claimant by this delay. In the proposed response form, the respondent has set out an explanation for the delay explaining that, although her solicitor had returned papers to her for approval by letter dated 12 October 2016, she had failed to deal with the correspondence and thereby missed the deadline of 18 October 2016 for filing the response. As the respondent acknowledges and accepts this should not have occurred and it is clearly unfortunate that relevant and appropriate action to remedy this error was not taken before the default judgment had to be entered.
8. In the circumstances, I concluded that, although the failure to comply with the relevant time-limits was unsatisfactory and should not have occurred, I do not think that this is a determinative factor in determining this application, given that no real or forensic prejudice has occurred to the claimant. Since that there is now a proposed response on the merits I am satisfied that, having regard to the terms of the overriding objective, the said Default judgment should now be revoked, time should be extended for presenting the said response and the said response should now be accepted by the Secretary of the Tribunals. In light of the foregoing, the matter should now proceed in accordance with the relevant Rules of Procedure.
Neil Drennan QC
Date decision recorded in register and issued to parties: