Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 795/08

CLAIMANT: Michael Alexander Bradley

RESPONDENT: Hugh Doherty and Michael Loughran T/A Riverside Oils

DECISION

1. The decision of the Industrial Tribunal is that we have no discretion to accept a late response being lodged by the respondent in this matter, under Rules 4 and 9 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and so the respondent’s application is refused. As the respondent’s representative has indicated that they wish to apply for a review of that decision on the grounds of Rule 34 (3) (e) namely that the interests of justice require such a review, the tribunal has decided to adjourn the matter to allow for the issue of this decision.

2. Given that the respondent failed to lodge its response in time and given also that they failed to notify either the tribunal office or the claimant of their intention to seek leave to lodge a late response until the morning of the hearing, the tribunal awards costs against the respondent in the sum of £750.00.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr I Lindsay

Mr P Laughlin

Appearances:

The claimant was represented by Mr Stewart BL instructed by James Ballentine & Sons Solicitors.

The respondent was presented by Mr Richards BL instructed by John J McNally & Co Solicitors.

The Issue

1. At the outset of the hearing, Mr Richards appeared on behalf of the respondent to request the tribunal to accept a late response to the claim form lodged by the claimant. He believed that the respondent had a meritorious defence to the claim and it was on this basis that he made the application.

2. Mr Stewart on behalf of the claimant indicated that Rule 9 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 is clear. That rule indicates that any respondent who has not presented a response to a claim or whose response had not been accepted under Rule 4 is not entitled to take any part in the proceedings except to make an application under Rule 35 for preliminary consideration of an application for review in respect of Rule 34 (3) (a), (b) or (e). Mr Stewart noted that the claim form is dated 28 May 2008 and had been received at the Tribunal Office on 29 May 2008. On 12 June, the Tribunal Office wrote to the claimant’s solicitors to say that the respondent had been written to and that no response had been received to date.

3. Having considered the submissions made by both parties and having considered the rules, we have decided that we have no discretion under Rule 4 to accept a late response. The respondent had the usual 28 day period in which to lodge a response but failed to do so. He also failed to apply for an extension of time within which to present his response. In all the circumstances, we cannot accede to his request and we indicated this orally at the hearing.

4. Mr Richards indicated that the respondent would wish to apply to review this decision on the basis that the interests of justice require such a review. Given that the claimant came to the tribunal for the hearing ready to present his case and have it heard in full, but that his Counsel was not prepared to deal with the respondent’s request for a review of the decision we have set out above, we have decided to adjourn the case to allow the decision to be issued to the parties.

5. We believe that it would be preferable for any review application which the respondent wishes to make in relation to the late response to the claim to be dealt with in advance of a hearing of the merits of the case. In making this decision, we are conscious of the requirements of Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 which requires us to deal with cases justly. In so doing, we must take into account that we deal with the case in ways which are proportionate to the complexity or importance of the issues and that it is dealt with expeditiously and fairly. We believe it is preferable to postpone a full hearing of the matter until the issue of whether or not the respondent may defend the case has been resolved.

6. Given the lateness of the respondent’s application and given that the claimant was not put on notice of their intention to make this application in advance, we believe that in these circumstances the respondent has acted unreasonably and we therefore order him to pay costs in the sum of £750.00 to the claimant.

Chairman:

Date and place of hearing: 26 November 2008, Belfast.

Date decision recorded in the register and issued to the parties: