United Kingdom Employment Appeal Tribunal

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Cite as: [1994] UKEAT 671_92_1910

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BAILII case number: [1994] UKEAT 671_92_1910

Appeal No. EAT/671/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 October 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T C THOMAS CBE

MS D WARWICK

JUST FERN LTD APPELLANTS

(1) MR M J S D'INGERTHORPE

(2) DR D A SAMARAKOON

(3) MR D BASNAYAKE

(4) EDWIN MENDOZA & ASSOCIATES RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE APPELLANTS

For the Respondents NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE RESPONDENTS. SAVE THE FIRST RESPONDENT IN PERSON.

MR JUSTICE MUMMERY (PRESIDENT): The Tribunal is faced with an unusual situation in this appeal. The history of the matter, which needs to be stated briefly in order to understand the position today, is this: Mr d'Ingerthorpe was the Applicant in proceedings brought in the Industrial Tribunal against four Respondents: Just Fern Ltd. A Dr Samarakoon, a Mr Basnayake and a firm called Edwin Mendoza and Associates.

The complaint brought by Mr d'Ingerthorpe for unfair dismissal was heard by the Industrial Tribunal at London South on 24 June 1992. Mr d'Ingerthorpe presented his case in person. Dr Samarakoon, managing director of the company Just Fern Ltd, appeared for the company.

The Tribunal gave its full reasons for its decision on 11 August 1992. It decided to dismiss the claims made by Mr d'Ingerthorpe against the second, third and fourth Respondents. That left only the company, Just Fern Ltd.

The Tribunal found that Mr d'Ingerthorpe has been unfairly dismissed by Just Fern and made an award in his favour. The components of the award were £925 basic award, £3,634.28 compensatory award and a further sum of £150 for loss of protection under the legislation. There was an appeal against that decision by Just Fern Ltd. The notice of appeal, was dated 21 September 1992. That notice of appeal was put in, on behalf of Just Fern, by a firm of solicitors called Messrs R W Anderson of Margaret Street, London W1.

The preliminary hearing of that appeal came before the Employment Appeal Tribunal on 10 November 1992. Counsel appeared on behalf of Just Fern Ltd. Mr Justice Wood and the lay Members who constituted the Tribunal were given undertakings by Just Fern Ltd, by Dr Samarakoon, both on his own behalf and on behalf of Just Fern, and by the solicitors, Messrs R W Anderson, that the sum of £3,634.28, the amount of the compensatory award, should be paid as soon as practicable and not later than 12 noon on Thursday, 12 November, into an interest bearing account in a bank or building society in the name of Just Fern Ltd -v- d'Ingerthorpe Client Account. That money, which was to be received by the solicitors and put into the account, was to remain in the account to abide the outcome of the appeal. It was specifically provided that that sum should not be released without any further order of the Employment Appeal Tribunal, so there were personal undertakings by the solicitors and Dr Samarakoon and undertakings by the company in relation to that sum. No part of that sum could be paid out without this Tribunal's order.

The Tribunal, on those undertakings, ordered the appeal to proceed to a full hearing. That full hearing took place before the Tribunal presided over by Mr Justice Knox on 5 November 1993. Judgment was delivered on 21 December 1993. At the hearing of the appeal, Counsel instructed by R W Anderson appeared for Just Fern and the other named Respondents, except for Mr d'Ingerthorpe, who appeared in person. There was no appearance from the fourth Respondents.

The result of the appeal was that it failed, save on one aspect raised by the part-time earnings of Mr d'Ingerthorpe. They had not been dealt with by the Industrial Tribunal. On that part of the case the Tribunal was of the view that it should be reconsidered by the Industrial Tribunal to whom the matter was remitted for that purpose.

The matter was remitted to the Industrial Tribunal and heard by them on 25 April 1994 when they unanimously decided that the compensatory award made by the previous Tribunal should be reduced to £3,447.01, a reduction of £337.27. The basic award remained the same. Nothing was said which affected the award of £150 for the loss of industrial rights.

A question has now arisen as to what is to happen to the money in the deposit account. We do not have a precise figure for the account at the moment. We know that £3,634.28, together with interest, has accrued in accordance with the order of 10 November. We also know, because we have a letter from R W Anderson, that they have ceased to act for Just Fern. They are not certain whether it is still trading or not. They state in a letter to this Tribunal of 10 October 1994 that they consent to an order being made by the Tribunal that that sum or such sums as we shall deem fit should be paid out of that account within 14 days.

As Andersons had no instructions from the company, we are without representations today for many of the other parties to the proceedings. In view, however, of what has happened, it is clear what course we should take. We should make an order for the payment out of that account of all the sums that are in it, both principal and interest, to go towards the satisfaction of Mr d'Ingerthorpe's award, which he has obtained against Just Fern. We order that the sum is released and is to be paid to Mr d'Ingerthorpe within 14 days of today.

That leaves a number of loose ends which Mr d'Ingerthorpe has asked us to deal with. We make it clear at the outset that we have no power, as an Appeal Tribunal, to make a decision or order on any of these extra matters but, in order to help him and any later Court or Tribunal that may have to deal with further applications, we set out the position as follows.

First, the question of interest. We clarify, for purposes of this case, that the interest on the award is a separate matter from the interest which has been earned on the amount of the deposit in the account. Under the regulations, Mr d'Ingerthorpe is entitled to automatic interest at the stipulated rate on the amount which Just Fern was required to pay him as an award. That interest begins to run at the end of the period of 42 days beginning with the date when the document recording the award was sent to the parties. The document recording the award was sent to the parties on 11 August 1992. That contains the three items I have mentioned, for basic award, compensatory award and £150 for loss of protection. It must be borne in mind that the compensatory award has been slightly reduced by the order of the Industrial Tribunal on 25 April this year. Subject to that reduction, automatic interest runs from the period mentioned. That will produce, in all probability, a greater amount than the interest which has actually been earned on the amount of money in the deposit account, because there is a larger sum involved and because the rate of interest at the specified rate may well be greater than the rate of interest payable on the deposit.

What we cannot do is to determine what that amount of interest is. If that is to be done at all, because agreement cannot be reached, it must be fixed by the Industrial Tribunal or by the County Court, as the Court which deals with any applications by Mr d'Ingerthorpe to enforce the award.

Another matter, which we cannot deal with, in that there was a complaint by Mr d'Ingerthorpe that Mr Justice Wood must have made a slip in fixing the amount to be paid in at £3,634.28, as that was only the amount of the compensatory award. As appears from the Tribunal decision the award was higher than that, because it included the basic award and the compensation for loss of industrial rights. We cannot go behind that. The order made nearly two years ago clearly stated what sum should be paid in. That Order has never been altered. There is no basis on which we can alter it now. That deals with the point about interest and the amount in the deposit account.

Another matter raised by Mr d'Ingerthorpe is also outside the jurisdiction of this Tribunal. He has a suspicion, increased by the most recent letter from Andersons, that, as this company has perhaps ceased trading, it may not have assets in order to meet the shortfall between the amount of the award, to which he is entitled with interest, and the amount which he will actually receive on the release of the money in the deposit account. He submitted that, in order to make sure that he cannot benefit from the award, Just Fern may have been deliberately dissolved in order to avoid the awards made by the Industrial Tribunal and confirmed by this Appeal Tribunal. He asks that the original individual Respondents, Dr Samarakoon and Mr Basnayake, directors of Just Fern, should be reinstated as Respondents in order to give effect to the awards. We cannot do that. They were dismissed from the proceedings. The award was only made against the company. If there has been any disposition of assets by the company with the connivance of Dr Samarakoon and Mr Basnayake, in fraud of Mr d'Ingerthorpe, such as a disposition with intent to award paying creditors, that is a matter which should be raised by Mr d'Ingerthorpe before the County Court. If he has to take steps to enforce the order and if he wishes to enforce the Order against persons and companies other than Just Fern, he will have to institute the appropriate proceedings in the County Court in order to set aside any transfers of property that may have taken place defrauding creditors.

Those are matters on which we express no view. We have no evidence before us. We have only the suspicion about these matters voiced by Mr d'Ingerthorpe. All those are matters which are to be dealt with, if at all, by the County Court on enforcement.

Those are the matters raised by Mr d'Ingerthorpe. He has complained generally about obstruction by the other side and their advisers. We express no view on what has happened. We have not heard any explanation from them of the position.

The position, therefore, is this: that the only order we make is that within 14 days the amount in the deposit account, with the accumulated interest, should be paid out to Mr d'Ingerthorpe towards meeting his award. We have indicated what steps might be taken by him in relation to any shortfall there is between the award, plus interest at the stipulated rate and the amount he actually receives under this order. We make that order on the basis that there has been a consent to it from the solicitors who gave the undertaking in the original order of 10 November.