United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 929_95_1706

Appeal No. EAT/929/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 June 1996

HIS HONOUR JUDGE PETER CLARK

MRS T A MARSLAND

MISS D M PALMER

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(1) MR P BUTLER
(2) MR B SUNDERLAND          APPELLANTS

THE BOROUGH COUNCIL OF CALDERDALE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR J S P SPRUCE

(Solicitor)

Messrs Singleton Spruce

Solicitors

125-127 Allerton Road

Liverpool

L18 2DD

For the Respondents MR S KEALEY

(Of Counsel)

The Director of Law and Administration

Crossley House

Crossley Street

Halifax

West Yorkshire

HX1 1UG


 


JUDGE CLARK: The two Appellants, Mr Paul Butler and Mr Brian Sunderland, were both employed by the Respondent Council as Principal Heating Engineers until their dismissals on, respectively, 27 and 25 November 1994. The alleged ground for dismissal in each case was gross misconduct relating to the way in which they awarded contracts for work carried out on behalf of the Council.

Both men consulted solicitors, Messrs Singleton Spruce, who drafted Originating Applications on their behalf complaining of unfair dismissal. Those complaints were presented on 15 and 16 February 1995, respectively.

The grounds of complaint in each application were in identical terms and read as follows:

"I was unfairly dismissed

(a) Allegations were unfounded or irrelevant or

(b) Warranted only a warning

(c) My superior was culpable and not so far as is known disciplined

(d) Dismissal after suspension was summary and unwarranted

(e) Our application for an "appeal" hearing sent from our solicitors has not been responded to"

The Respondent entered Notices of Appearance to each complaint, setting out in some detail the nature of the misconduct alleged against each man.

On 12 April 1995 the Respondent sought an order for further and better particulars of the grounds of complaint relied on by the Appellants. That order was made by the Industrial Tribunal on 19 April. The Appellants were directed to furnish the particulars by 9 May, with a warning that failure to do so may result in their applications being dismissed.

The Appellants failed to provide any particulars within the time allowed.

On 17 May the Respondent applied for an order striking out the Originating Applications for non-compliance with the Industrial Tribunal's order.

On 22 May the Industrial Tribunal fixed a date for hearing the striking out application, the 2 June.

On 2 June the parties appeared before the Leeds Industrial Tribunal, (Chairman Mr A J Simpson sitting alone). The Chairman considered the Respondent's application and ordered that the Originating Applications be struck out under the provisions of Rule 4(7) of the Industrial Tribunal Rules of Procedure 1993.

His reasons for so doing are set out in Extended Reasons dated 20 July 1995. There he records that the Appellants' solicitor, Mr Spruce, apologised for the failure to comply with the Industrial Tribunal's earlier order. This was due to problems at his practice. However the particulars had now been delivered.

Those particulars provided on 2 June were considered by the Chairman. He accepted the Respondent's submission that they failed to comply with the earlier order. He struck out both Originating Applications.

Against that order the Appellants now appeal.

Mr Spruce, who was not the partner originally dealing with the case, appears on their behalf today. He accepts that the time for providing the particulars was not complied with and that the particulars eventually served on 2 June 1995 are inadequate. Having ourselves now seen those particulars, we see why that concession is made. The reply was in these terms:

"REQUEST

1. With regard to paragraph 10(a) of the IT1, please state in relation to both of your clients which allegations were unfounded and why. Would you also state which allegations were irrelevant and why.

REPLY

1. This is a request for evidence

REQUEST

2. With regard to paragraph 10(b), please state why the allegations warranted only a warning.

REPLY

2. This is now a matter for the Tribunal

REQUEST

3. With regard to paragraph 10(c), please state who the `superior' is and why (s)he was to blame.

REPLY

3. This is a part of your own records and should be by way of Discovery

REQUEST

4. With regard to paragraph 10(e), please identify the application you are referring to, stating when and where it was lodged.

REPLY

4. Solicitors letter dated 1st December 1994"

Mr Spruce explains, without seeking to excuse, these lapses on the part of his firm and tenders a genuine apology.

However, he submits that the draconian order of striking out made by the Chairman was in effect a punishment; that the Appellants should not be deprived of their day in court and the opportunity to clear their names by seeking a declaration of unfair dismissal; that a claim in professional negligence against his firm is an insufficient remedy and that the matter could have been dealt with by the Chairman making a final unless order, giving the Appellants and their solicitors two or three days in which to put their house in order, bearing in mind that the case was listed for a substantive hearing in early August 1995. He further relies upon the decision of the Employment Appeal Tribunal in National Grid Co plc v Virdee [1992] IRLR 555.

Rule 4 of the 1993 Rules provides, so far as is material:

"(1) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion__

(a) require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto,

(b) require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a county court,

and may appoint the time at or within which and the place at which any act required in pursuance of this rule is to be done.

(7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."

It is common ground that the procedural requirements of Rule 4(7) were complied with. See Beacard Property Management & Construction Co Ltd v Day [1984] ICR 837.

In Virdee, the Applicant brought a complaint of race discrimination against the Appellant employer. He obtained an order for further and better particulars of the Notice of Appearance and discovery against the employer. In purported compliance with that order the employer both provided particulars and gave discovery.

At the substantive hearing it came to the notice of the employer's legal advisers that two relevant documents did exist, but that they had been previously unaware of those documents and had not disclosed them. They promptly provided copies to the Appellant's advisers. The Appellant then, through Counsel, applied for an order debarring the employer from defending for failure to comply with the earlier discovery order. That application was acceded to by the Industrial Tribunal.

On appeal the employer submitted that the Industrial Tribunal was guilty of misdirecting itself in a number of respects, in particular, that discovery had been completed by the time the striking out order was made and that this order had been made by way of a punishment.

This Tribunal upheld those submissions. It held that in the circumstances a fair trial was possible, discovery having eventually been given, and allowed the appeal.

This case is rather different. Had the Appellants solicitors provided proper particulars on 2 June then, notwithstanding their failure to provide them within time, we would not expect the striking out order to be made. But they did not. The Respondent was still left in the position that it did not know what case it had to meet. The Chairman was entitled to conclude that on the state of the pleadings as at the time the striking out application was considered, a fair trial could not take place. We therefore distinguish this case from the case of Virdee on the facts.

That leaves only the question of perversity, which did not fall to be considered in Virdee. It is accepted by Mr Spruce that orders of courts and tribunals are made to be complied with. See Samuels v Linzi Dresses Ltd [1981] 1QB 115. We might all of us have taken a different course had we been sitting as the Industrial Tribunal Chairman considering this application. However we were not. We must remind ourselves that our powers to interfere with the exercise of discretion granted to Industrial Tribunals is limited to correcting errors of law.

In our judgment this Chairman's decision cannot be characterised as perverse in any of the senses of that expression, conveniently collected by Mr Justice Mummery in Stewart v Cleveland Guest (Eng) Ltd [1994] IRLR 440 at paragraph 33. It fell within his proper range of discretionary responses.

In these circumstances we must dismiss this appeal.