Industrial Tribunals Northern Ireland Decisions

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Cite as: [2006] NIIT 72_6, [2006] NIIT 72_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 72/06

CLAIMANT: Tadeusz Lange

RESPONDENTS: Victor and Doreen Preston t/a Class Services

DECISION ON REVIEW OF A DEFAULT JUDGEMENT

The default judgement issued on 29 March 2006 is hereby reviewed and I order that the default judgement be revoked and that the respondents should be allowed to respond to the claim and the proposed response presented on 23 May 2006 should be accepted.

Constitution of Tribunal:

Chairman: Mrs M Davey

Appearances:

The claimant was represented by Dr T McGleenan, Barrister-at-Law, instructed by the Equality Commission.

The respondents were represented by Mr D Bunting, of Peninsula Business Services Ltd.

The Facts:

The claimant lodged a claim for unlawful discrimination on the grounds of race, unfair dismissal, breach of contract, unauthorised deduction from wages, and failure to pay holiday pay, notice pay and overtime, on 10 January 2006. On 16 January 2006 the Office of the Tribunals wrote to the respondents enclosing a copy of the claim. The letter clearly stated that the respondents had 28 days to respond to the claim from the date of the letter and that the final date for receipt of the response was 13 February 2006. The letter also advised the respondents that if no response was received by that date and no extension of time had been granted by a Chairman, the respondents would not be entitled to resist the claim.

The respondents failed to present a response to the claim and a default judgement was issued in relation to liability only on 29 March 2006.

On 11 April 2006 a letter was received from the respondents requesting an extension of the time limit for presenting the response. This letter indicated that information with regard to this claim had previously been sent to the Office of the Tribunals on 31 January 2006. There is no record of any documentation being received from the respondents in the Office of the Tribunals.

The request for an extension of time to enter a response was refused because the request was not made within 28 days of the receipt of the claim form.

By letter dated 15 May 2006 both parties were informed that the remedy hearing in relation to the default judgement would take place on Thursday 8 June 2006 at 10.00 am.

By letter dated 17 May 2006 Peninsula Business Services Limited came on record for the respondents. They applied to have the default judgement of 29 March 2006 reviewed. They also applied for an extension to the 14-day time limit for submitting their request for the default judgement to be reviewed and they asked for the hearing listed for 8 June 2006 to be postponed.

The respondents' representatives were informed by letter dated 23 May 2006 that, as they had not complied with Rule 33(2) of Schedule 1 of the Industrial Tribunals Rules of Procedure 2005, their request for a review of the default judgement could not be dealt with. It was also pointed out that, as they were not a party to the proceedings, they could not apply for a postponement.

By letter dated 23 May 2006 the respondents' representative applied to have the default judgement revoked and also applied for an extension to the time limit for the application for review under Rule 33(1). The respondents also provided the proposed grounds of the response to the claim in this letter.

As a result of this application, which was copied to the claimant, the remedy hearing listed for 8 June 2006 was postponed and a hearing to deal with the respondents' request for a review of the default judgement and an extension of time in which to make that application for review was held.

Mr Bunting, on behalf of the respondents, requested an extension of time for the application for the revocation of the default judgement to be allowed, on the grounds that it would be just and equitable to do so. He also requested that the default judgement should be revoked, in the interests of justice. He suggested, with regard to the extension of time, that the tribunal should take into account the circumstances and reasons for the delay, the resultant prejudice to either party and the merits of the response.

He accepted that the response should have been provided by 13 February 2006, but he indicated that he understood that the respondents did not treat the claim form as serious, because the contents of it seemed so outlandish to them. He maintained that the respondents had treated the claimant very kindly. He also referred to the letter of 10 April 2006, whereby the respondents claimed that they had sent information with regard to this claim on 31 January 2006. He suggested that the respondents, in ignoring the claim form and the letter giving them clear instructions as to when they needed to respond, was due to naivety on the part of the respondents. He suggested that there would be grave prejudice to the respondents if the default judgement were allowed to stand, particularly in view of the proposed defence, which had now been set out in relation to this claim. He suggested that if the respondents were ordered to pay the type of sum which the claimant appeared to be seeking there could be substantial financial difficulty for the respondents. Mr Bunting argued that if the claimant's claim was meritorious then it deserved a full merits hearing and that it would be in the interests of justice to revoke the default judgement and have this case heard in its entirety.

Dr McGleenan pointed to the fact that neither respondent was present to give evidence themselves. He suggested that it was staggering that in circumstances where Mr Bunting had referred to the financial difficulties which could ensue that neither of the respondents were present to give evidence. He suggested in the circumstances that little weight should be attached to Mr Bunting's submissions in this regard. He suggested that the reasons advanced of naivety and the apparent effect of the postal strike should have been dealt with by way of evidence. He pointed out that the first request for a review of the default judgement came 49 days after the default judgement was issued. He suggested that this was exceptional delay in these circumstances. He maintained that in these circumstances such continuing delay should be relevant to my discretion as to whether to extend the time for the request for a review.

Turning to the submissions made by Mr Bunting, Dr McGleenan suggested that it was untenable that the respondents could have regarded the tribunal correspondence received with the claim form as a joke. He also queried the suggestion that a letter or something had been sent to the tribunal on 31 January 2006 and had not been received due to the postal strike. He suggested that there was no evidence given as to what efforts to follow up had been made in relation to the postal strike.

Dr McGleenan suggested that this case was on all fours with the case of Pendragon Plc -v- Copus [2005] ICR 1671. He maintained that one should consider all the relevant factors, including the explanation or the lack of explanation for the delay, the merits of the defence, and balancing them to reach a conclusion which could be objectively justified on the grounds of reason and justice. He suggested that in the current circumstances the delay was extreme, the explanation of a joke and the postal strike unconvincing, and that there was no explanation of the second delay from 29 March 2006. In addition, he argued that the merits of the defence could only be considered if one received evidence from the respondents with regard to the alleged financial difficulties and immigration status. He suggested that in the circumstances of this case there was only one conclusion that could be drawn, and that was to dismiss this application to set aside the default judgement.

Mr Bunting pointed out that the information with regard to immigration was contained in the proposed response. He further suggested that there was not a complete failure to reply to the default judgement and that the letter of 10 April 2006 could be regarded as a shallow attempt at having the judgement set aside. He suggested that the tribunal needed to consider the merits of the response and the reasons for the delay and to do justice as between both parties.

Reasons:

In the circumstances, despite the inadequate explanation for the respondents' failure to present a response in time, and even to deal with the default judgement on liability promptly, I must consider the overall interests of justice. In the circumstances, I consider that despite the respondents' delays in this matter the overall balance of prejudice will be against the respondents more than the claimant if I do not revoke the default judgement. I am satisfied from the proposed response which was eventually provided that the respondents may have a meritorious defence to this case and, in the circumstances, it would be in the interests of justice to allow this defence to be heard. I therefore revoke the default judgement and order that a full hearing should now take place in relation to this claim.

Chairman:

Date and place of hearing: 22 June 2006, Belfast

Date decision recorded in register and issued to parties: