United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 1017_93_2009

Appeal No. EAT/1017/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 September 1994

Before

HIS HONOUR JUDGE J HICKS QC

MR D O GLADWIN CBE

MRS M E SUNDERLAND

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BISON FLOORS LTD          APPELLANTS

MR K S JUGPALL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M GRIFFITHS

(Of Counsel)

Eversheds Hepworth & Chadwick

Cloth Hall Court

Infirmary Street

Leeds

LS1 2JB

For the Respondent IN PERSON


 


JUDGE HICKS: Mr Jugpall, the Respondent to this appeal, was employed by the Appellants as an electrician until he was made redundant on 23 October 1992. He applied to the Industrial Tribunal on the basis that dismissal for redundancy was an unfair dismissal and they heard that application in September of last year and promulgated their decision on 20 October, finding that it was an unfair dismissal and awarding compensation, in total of the order of some £11,000.

The employers appealed against that decision, but we have to deal first with an application by Mr Jugpall for an adjournment of the hearing. The hearing was, and always has been, listed for today but on 12 September, Messrs Harris & Cartwright, who were Mr Jugpall's solicitors and had been on the record as his solicitors during the Appeal, wrote to this Tribunal referring to an earlier letter of which we have no copy before us (and which, as we understand it, is not relevant) saying that they were still without Mr Jugpall's instructions, believed he might still be abroad and asked for the hearing to be adjourned, since they could not proceed without instructions. A copy of that was sent to the employer's solicitors who wrote a letter opposing that application, which we need not read, and on 13 September the Registrar of this Tribunal wrote to Messrs Harris & Cartwright refusing the application. They wrote again on 14 September at greater length renewing the application and some of the matters they set out there should be recorded. They say that they received notification of the hearing date on 26 July and on the same day wrote to their client, Mr Jugpall, advising him of that. "At that time", they write:

".... we were aware our client was on holiday in Canada, but he was expected to return some time in the early part of August. We have endeavoured to get in touch with our client but obviously it seems that he is still currently abroad. He is therefore not aware of the Hearing date. Prior to him leaving the country, (we believe in early July) we had taken some instructions from our client and indeed he was to forward to us a copy of the Industrial Tribunal decision. This we subsequently obtained from Messrs Eversheds [that is the employer's solicitors] on the 29th July".

And they advance arguments for allowing the adjournment, but the Clerk of the List wrote on 15 September, on the instructions of the President, Mr Justice Mummery, again refusing the application.

Messrs Harris & Cartwright then wrote again on 19 September, that is to say yesterday. Among other things they say:

"We have tried to contact him [our client] today and it seems that he is still abroad. The last time we saw or spoke to our client was on the 23rd May 1994 when he advised us that he would be going for a holiday in July but would be returning in August. Since then we have written to him on numerous occasions".

Those were the matters put before the Tribunal by Messrs Harris & Cartwright who, as we understand it, have now ceased to act in this appeal and who certainly do not appear before us themselves or by counsel today.

Mr Jugpall, in making his own application this morning for an adjournment, told us that he had been in Canada to attend a family wedding which took place on 24 July. He had left on 7 July intending to return on 14 September and having booked an airline ticket for that return, but the airline went into liquidation, or at least insolvency, and the return flight had to be rearranged so that in fact he arrived yesterday. He told us that before leaving the country he telephoned the office of this Tribunal and asked about the date for the hearing and was told that it was not fixed but could come on while he planned to be away. He says that he told his solicitors, Harris & Cartwright, that he would be out of the country and gave the dates, although he did not give them an address in Canada where he could be contacted, and he makes his application on the basis that he is not qualified or adequate to deal with the issues raised on this Appeal which are, as is the case in all Appeals to this Tribunal, matters of law, and we certainly accept that.

Mr Griffiths, on behalf of the employers, opposes that application. He referred to certain matters in the earlier history of these proceedings. There was apparently an adjournment of the hearing before the Industrial Tribunal, but we do not consider that those matters are really of any significance and we do not take them into account in our decision. He submits to us, as we accept, that we have to take into consideration the interests of both parties and also the public interest in the sense that this Tribunal has a very heavy caseload, that as a result of that caseload there are inevitable delays in cases coming on to the disadvantage of all parties who have matters coming before this Tribunal, and that the inevitable result of an adjournment is a wasted day which has postponed the dates on which other parties could have been heard, and that is a matter we take into account.

The considerations, therefore, against granting this application are first the interests of the Appellant employers who have come here prepared to deal with the matter and whose costs of doing so will be wasted if there is an adjournment, and although it is possible that could be dealt with by way of a costs order there can be no certainty, they say (and we accept that), that a costs order would fully cover their wasted expenses or indeed that it would be enforceable against a person in Mr Jugpall's position, by reason of his means and resources.

The second consideration against is the one that I have already mentioned of the public interest in not wasting the time of this Tribunal, not because of the concerns of the members of the Tribunal, but because of the concerns of other appellants and respondents who need to have their appeals dealt with as promptly as possible.

The third consideration against is because the facts, as I have recited them, both advanced by the solicitors and advanced by Mr Jugpall himself, and more particularly also the discrepancies between them, do not give a convincing explanation of why, on his side, this appeal cannot be proceeded with or could not be proceeded with had there been proper attention by him or his solicitors, or both, to its preparation.

On the other side the consideration in favour of granting the adjournment is that undoubtedly, since we have to deal with matters of law, which Mr Jugpall is not qualified to deal with, his case will not adequately be put before us and in that sense, and not in any other sense, there will not be a fair hearing and there will not be a full hearing at which the Tribunal will have the advantage of competent submissions on each side.

On balance, despite the strength of the reasons against an adjournment and our reluctance to accept the waste involved, we consider that the need to ensure a fair hearing in the sense that I have described does preponderate, and we therefore grant this application

for an adjournment and the appeal will have to be re-listed.

We direct the Listing Officer to arrange that that be on a date when the two lay members of this Tribunal are available so that their having read the papers will not have been wasted and also in order that they may be able to bring to bear their knowledge of the circumstances in which this adjournment was granted, should that become material, as indeed we consider it will for reasons which I shall give if Mr Griffiths, as he has indicated he is going to do, formally makes an application for the costs.

[Submission as to costs]

Mr Griffiths, on behalf of the Appellant employers, applies for an order for the costs thrown away or wasted by the adjournment which we have already indicated that we are granting Mr Jugpall asks that that application itself be adjourned to the hearing of the appeal. It is true, as Mr Griffiths submits, that we have before us and fresh in our minds the matters that are relevant to that application, but on the other hand, as I have already indicated, we are directing that the lay members of this Tribunal be members of the Tribunal which deals with the appeal, so that their knowledge will be available. The matters that are relevant to the application are substantially confined on the one hand to the correspondence from the solicitors, Harris & Cartwright, which will be before the Tribunal which hears the appeal and on the other to the explanation given by Mr Jugpall which I have set out fully in my earlier reasons and of which there will be a transcript available, and we do not therefore consider that that application should occupy much time. What is in our view an even stronger consideration the other way is that if the application is dealt with then Mr Jugpall will have the opportunity of being represented in relation to that application as well as to the substantive appeal, and that seems to us to be an important consideration. We shall therefore reserve this application or adjourn it to be dealt with at the hearing of the substantive appeal.

We further direct that a copy of our reasons in dealing with both the application for the adjournment and this application for costs be sent to Messrs Harris & Cartwright and we express the hope that that will enable the Tribunal which deals with the appeal to be informed as to whether there is any resolution or explanation of what appear to be the differences between the explanations advanced by the solicitors and by Mr Jugpall in person and whether any understanding has been reached as to the final incidence of any costs order which may -we do not pre-judge the decision - be made against Mr Jugpall on this application.