United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 478_93_1810

Appeal No. EAT/478/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 October 1994

Before

HIS HONOUR JUDGE J HULL QC

MISS A MACKIE OBE

MRS P TURNER OBE

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MR I PATEL          APPELLANT

MR L HETTIHEWA          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS P CHEYNE

(OF COUNSEL)

Messrs Lattey & Dawe

Solicitors

21 Liverpool Street

London EC2M 7RD

For the Respondent MS S YOUNG

Free Representation Unit

Room 140, 1st Floor

49-51 Bedford Row

London WC1R 4LR


 


JUDGE HULL QC: This was a case in which the Tribunal was confronted with the situation in which Mr Patel had not complied with its Order for Discovery. They were entitled in those circumstances, if they thought it proper to do so, to strike out his answer and to refuse to hear him. They did so. That is a very drastic course which should only be taken if the interests of justice require it.

Here there was an Order for Discovery, on the face of it not appealed in any way, not objected to. That Order was to be complied with. For all that anybody knew the documents which were to be disclosed were of the greatest importance, absolutely vital they might be, and there simply had been a non-compliance. Mr Patel did not ask for an adjournment. He did not explain, what we have been told, that there were in fact only two documents, one of which he was able to hand over, and that the document which he could not hand over was a purely formal one which would not take matters further. His Solicitors apparently informed the Tribunal that they were not competent to conduct the case on his behalf, through lack of experience; showing really out of their own mouths that he had been badly served by them. Mr Patel himself did make certain observations to the Industrial Tribunal, but it appears that he was not asked why he had failed to comply and what the documents were. Certainly the Industrial Tribunal was not informed that there were effectively no documents to be disclosed.

In those circumstances the Tribunal might have asked about those matters. They do not appear to have done so. They might have offered one final chance to comply with the Order at Mr Patel's expense. They might have said to him "Well we are going to see this Order complied with and we are not going to tolerate any further prevarication, we are going to give you (say) 14 days or 21 days to comply with this Order by granting an adjournment and you are going to pay for it; on condition that you pay the whole costs of the adjournment, an adjournment is granted and you are to make discovery within that period and we will defer striking out for 21 days" - something of that sort, they might have said. They did not say any of those things and it is alleged by Ms Cheyne that their Order is not merely drastic (and certainly of course it is drastic) but unjust in that it is based not on the need to do justice, an absolute necessity of justice, which is all that can justify an Order striking out, but on a desire to punish Mr Patel. As I say we are not deciding that submission but it does appear to us from the very short note of what was said by Mr Patel to the Tribunal that enquiries might have been made which were not made and the Tribunal may not have fully acquainted itself with all the circumstances. That gives us some cause for disquiet. The Tribunal knows exactly what happened. We do not. We have to go on the Notes of Evidence, which were all that was asked for. It may be that the Tribunal has notes of other matters. It may be that the Tribunal has a recollection of the matter and certainly the Industrial Tribunal knows more about this than we do.

An application was made to the Tribunal, quite properly, to review its decision. The Tribunal took the view (and this was apparently accepted on behalf of the Applicant) that since the strike-out Order was an Interlocutory Order it did not fall under the power to review in Rule 11 and therefore that part of the application was rejected out of hand and not considered. It does seem to us that that is probably mistaken. The reason for that view is that Rule 11, which is in Schedule 1 to the Regulations of 1993, the Industrial Tribunals (Constitution and Rules of Procedure) Regulations, says:

"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision..."

When you look at the definition section in the regulations themselves regulation 2(2) says:

""decision" in relation to a tribunal includes -

a declaration, [this was not a declaration]

... a recommendation or an award of the tribunal, [that is not this case] and

a determination under Rule 6 [that is not this case]"

Further, it does include:

"an order, including an order striking out any originating application or notice of appearance made under Rule 4(7) or 13(2) [that does not apply in this case]

but does not include any other interlocutory order or any other decision on an interlocutory matter;"

That is clumsily worded. The Tribunal over which I presided yesterday heard submissions on just this matter. Rule 11 is intended to refer, primarily at any rate, to final orders not to interlocutory orders and the reason for that in my view, speaking for myself, is self-evident; because interlocutory orders are in their nature subject to variation if just cause is shown for their variation so that if, as is the position, a strike-out order is made and a cause shown why it should be reconsidered then any court and any tribunal has power to reconsider it if it thinks it right and just to do so, and should not dismiss the application out of hand on the basis that it has no power to review it. Indeed that interpretation, the wrong interpretation of the rules, is putting the cart before the horse because if there is a power to review a final order a fortiori there ought to be a power to reconsider an interlocutory order and to decline jurisdiction on that basis, is in our belief, wrong.

There are two cases which seem highly material in which it was declared in effect that the Industrial Tribunal has power to reconsider interlocutory orders - Charman v Palmers Scaffolding Ltd [1979] ICR 335 and Reddington and Others v S Straker & Sons Ltd [1994] ICR 172. In our view an Industrial Tribunal has power to reconsider any interlocutory order, whether made on notice or not, if just cause is shown. Clearly unless something new or important appears or some slip, some mishap, is shown, no court or tribunal is going to reconsider an order - it is going to say - Well you must appeal if you don't like my orders - but if something new is shown then it is different. An obvious example in the High Court is where an Order for Discovery is made and it is then shown, when the facts are looked into further, that great expense will be incurred to very little purpose or no purpose in complying fully with the order and exceptions are sought from the order. The Court then says - Well of course this was not put before us before but we are now going to reconsider this.

We think in the circumstances the Industrial Tribunal, having apparently acted on a misapprehension when they were asked to review the matter and having, so it is alleged, failed to make enquiries and to consider matters which they should on the strike-out application, should consider whether to reopen the matter and another opportunity should be given to Mr Patel; and if Mr Patel within 14 days applies to the Tribunal to reconsider its decision to strike out his case and lays before them those matters which we have been told about, in particular the circumstances in which he failed to comply with the Order and the circumstances about the documents which he says show that there was no injustice caused by his failure, then he should have an opportunity to do so. There will of course be liberty to restore this appeal. If Mr Patel does not make that application within 14 days it can be restored forthwith. If he does make it then as long as he proceeds properly with it he is to be allowed to proceed with that application until he gets the decision (which may be very short and to the point) from the Industrial Tribunal. As soon as that matter has been dealt with, if it is necessary this appeal may be restored and we will then of course decide this appeal.

For the moment we reach no decision at all on the merits of this appeal but there are certain matters which have given us cause for concern and we have set those out. They are the matters on which Ms Cheyne has addressed us and of course we shall look forward in due course, if the appeal is restored, to having Ms Young deal with those and any other matters.