United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R NARAYAN (Legal Consultant) Civil Rights (UK) 411a Brixton Road London SW9
For the Respondents	MR I LEE (Of Counsel) David Wagstaff & Co Treviot House 186-192 High Road Ilford Essex IG1 1LR


 


MR JUSTICE LINDSAY: We have before us an Interlocutory appeal against a decision of a Chairman sitting alone, indicated by a letter of 23 September 1997. It is unfortunately necessary to give quite a long procedural chronology because it is only upon the understanding of that that the matter can be resolved.

The matter arises in the application made by Mr Rajesh Doshi against his erstwhile employers London General Transport Services Ltd. ("LGTS"). Mr Doshi has lodged three separate Originating Applications laying complaint against his erstwhile employer LGTS and, by reference to their case numbers, and using just the last numbers, they are Cases 38/97, 96/97 and 74/97.

It said by LGTS that they never received the IT1 in Case 74/97. That has been sworn to by Mr Trevor George Johnson, the Personnel Manager. He says in his Affidavit that was produced below:

"4. However, at no time have I ever received an I.T. Originating Application from the Secretary of the Industrial Tribunal in respect of Mr Doshi's case number 2301247/97. [He actually calls it 47/97. This is a recurring mistake that occurs in this case.]

5. To the best of my knowledge and belief nobody else within London General Transport Services Ltd has received such an Originating Application either.

6. I have caused enquiries to be made in this regard and am satisfied in so far as is possible that no such Originating Application was ever sent to the Respondents."

There is another Affidavit from Mr David Wagstaff, a Solicitor, and he says:

"4. On 13th March 1997 I had a telephone conversation with Mrs Woolcott a Clerk at the Industrial Tribunal London (South) Regional office who informed me that she thought that the Appellant Mr Doshi had issued three cases against the Respondent but that there had been a filing mix up at the Tribunal office and everything would be sorted out at the forthcoming directions hearing.

6. The Appellant did indeed provide details of his case under 2301247/97 [again that is a mistake, it should be 74/97] but the Originating Application was not served.".....

So there is evidence that there was never received by LGTS an IT1 in the case which, properly numbered, is 2301274/97.

Despite that, on 19 March 1997, the two Cases 96/97 and 74/97 were combined. They were combined under Rule 18. Rule 18 gives the Industrial Tribunal that is making the Order to combine the proceedings power to give such consequential directions as may be necessary. Accordingly, at that same time on 19 March 1997 the Industrial Tribunal ordered further and better particulars to be delivered by Mr Doshi in Case 96/97 and Case 74/97 within fourteen days.

It seems to be the case that LGTS at that hearing on 19 March did not raise the point that they had not received the IT1 in Case 74/97. Whether they raised it or not, would, I think, have made little, if any, difference because it is highly unlikely that the Industrial Tribunal would have required them then to answer the IT1 in the circumstance that particulars had just been ordered of it. It would have been pointless for the Industrial Tribunal to adopt a system under which LGTS had first to respond to the IT1 and then later would receive further and better particulars of it and then would have to reply to the particulars and make consequential amendments. It would, equally, have been wasteful on 19 March for different steps to be taken in the two actions which had then been combined.

Moving forward in the chronology, on 24 March Mr Doshi sent particulars of claim to the Industrial Tribunal. He, too, put the wrong case number on; he wrote 47/97. He seems to have failed to have noticed that 74/97 and 96/97 were by then combined into one hearing. Insofar as the particulars fail to particularise what had been in the separate Cases 96/97, he failed to comply with the order for particulars that had been made, because that required particulars in 96/97 within fourteen days of the 19 March and he gave no particulars of 96/97 within fourteen days of 19 March.

Moving ahead again in the chronology, on 25 April (that is too, say well out of time) Mr Doshi did send particulars to the Industrial Tribunal headed 96/97. He also asked in the 96/97 case for leave to amend his particulars of claim in the form that he then submitted. Again he seemed to have failed to have realised or to have noted that 96/97 and 74/97 had been combined.

On 20 May the London (South) Industrial Tribunal Chairman refused Mr Doshi's application for an extension of time, so that at that stage Mr Doshi had suffered a reverse. However, on 19 August the Industrial Tribunal Chairman, Mr Warren, acting, as it would seem, of his own motion, which is a thing that the Chairman is entitled to act upon, took a more merciful view of the Doshi case. He reviewed events and he revoked the decision of 20 May. He, too, it would seem, overlooked that 96/97 and 74/97 were now one combined proceeding. At all events they had been ordered to run together. His letter is headed 96/97 only. It is worth looking at the particular terms of the end of that letter. What he says is this:

"The Respondents are now to have 21 days from the date of this letter to file an amended Notice of Appearance if so advised. The parties will be sent a Notice of Hearing shortly."

On 26 August Mr Doshi's advisers wrote to LGTS with quite a long list of the documents which they wished to see and information which they wished to have in Case 96/97 and also, persisting in their earlier error in the case, as they called it, in Case 47/97 but which, strictly, was 74/97. It was quite plain that by then Mr Doshi understood that 96/97 and the other case properly titled 74/97 were proceeding together.

On 9 September, the last of the twenty-one days which the Chairman had prescribed on 19 August, LGTS wrote to the Industrial Tribunal and sent to the Industrial Tribunal an amended IT3 Notice of Appearance. Their letter is headed 96/97 and 74. Their letter refers to the two cases being combined. They used the word "consolidated" but, strictly speaking, it is not a consolidation but that the cases are combined so that they run together. What they sent by way of an amended IT3, as they called it, was, it seems, a photocopy of the original IT3 which had been served in Case 96/97 back in February of 1997. But now it had a different attachment to it than it had had in the first place, and, moreover, the new IT3, although, it seems, based on a copy of the earlier one, had now got another number written on it (my particular copy is rather badly photocopied) but it may have been a reference to 74/97 or perhaps to the mistaken number 47/97, but the accompanying letter that was written at the same time (9 August) would in any case have made it quite clear that the amended IT3 was intended to serve both the combined limbs of Cases 96/97 and 74/97. Indeed, Mr Doshi understood the amended IT3 to be intended to cover both cases because on 19 September Mr Doshi's union, Public Transport (Staff) Consortium, wrote a letter to the Industrial Tribunal that began:

"Thank you for your letter of 15-09-97 together with enclosed respondent's amended notice of appearance for what appears to be the consolidated cases under case no's.2300496/97 & 2301274/97."....

So Mr Doshi understood perfectly well that the new amended IT3 was to cover both cases. A little later Mr Doshi's advisers launched a complaint to the Industrial Tribunal that there had been no IT3 served in time in relation to Case 74/97. What they said in their letter is:

"We hereby urge your Industrial Tribunal to do the right thing and to order/direct the respondent to file an proper amended notice of appearance for the matter under case no 2300496/97 (........) and then if the respondent so wishes, that they make proper application for extension of time to lodge an notice of appearance for the specific matter under case no. 2301274/97. That in any event, we be given an opportunity in the event of any such application(s) by the respondent, to contest such applications(s) accordingly. That the Industrial Tribunal do act accordingly."

So by this time the Chairman had before him a situation in which his file may or may not have shown that there had an IT1 served in the separate Case 74/97. We do not know what his file had in it. He had before him a situation in which Mr Doshi had from time to time, as had LGTS, used the wrong title to proceedings. So the seed-bed for confusion was well laid. It was a case in which Mr Doshi had been out of time as to service of particulars so far as concerns such parts of the combined proceedings as had earlier been number 96/97. It was a case in which Mr Doshi had repeatedly failed to notice that the proceedings had been combined and he had that feature in common with the IT itself. It was a case in which the LGTS had, within the time provided, served an amended IT3 which purported to deal with both 96/97 and 74/97. But it was a case in which Mr Doshi complained that there had been no IT3 in 74/97 within the proper time. Looking at that confused and confusing situation, the Chairman on 23 September wrote to the parties to indicate this:

"He directs that in the circumstances he confirms leave to file an amended Notice of Appearance in respect of both Applications.

In so far as it is necessary to grant an extension of time to validate the Notice of Appearance such an extension is granted."

Then on 6 October Mr Doshi lodged a Notice of Appeal against that decision of 23 September and applied for a stay pending proceedings. That is the procedural and chronological background.

Mr Narayan appearing today for Mr Doshi has condensed the argument into a smaller compass than the grounds of appeal themselves first indicate. To revert to the Notice of Appeal itself, the first ground is that the Respondent "had significantly failed to apply for an extension of time to enter a Notice of Appearance let alone justify reasonable grounds for any such late application". Then there is a quotation from Rule 3(1) of The Industrial Tribunal Rules 1993 referring to the fourteen days which a Respondent has after receipt of a copy of the IT1. But that ground, which Mr Narayan only touches upon, and, in our view, wisely only touches upon, really carries Mr Doshi no distance because there is here no evidence that LGTS did receive an IT1 in Case 74/97 and, on the contrary, there is evidence that it did not receive it; the evidence of Mr Johnson and Mr Wagstaff, which I have referred to earlier and which is not countered by any evidence either from Mr Doshi's side or from the Industrial Tribunal itself.

The only effect of Mr Doshi's complaint would therefore be that LGTS would be given fourteen days from the time that they get served upon them an IT1 in Case 74/97. In other words, the only effect would be to give LGTS more time rather than less. Mr Doshi can have no complaint against an order which shortened effectively the time which his opponent was afforded. LGTS make no complaint that they have had insufficient time. So on this first ground there is really nothing in it at all that might assist Mr Doshi and Mr Narayan was wise not to lay much emphasis of that point.

The second complaint in the Notice of Appeal is as follows:

"that Rule 3(2) of The Industrial Tribunal Rules 1993 mandates as follows:

A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except–

(a) to apply under rule 15 for an extension of the time appointed by this rule for entering an appearance;"

I ought at this stage to read parts of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (1993) Schedule 1, Rules of Procedure:

"3(3) A notice of appearance which is presented to the Secretary after the time appointed by this rule for entering appearances shall be deemed to include an application under rule 15(1) (by the respondent who presented the notice) for an extension of the time so appointed.

(4) Without prejudice to rule 15(3), if a chairman grants an application deemed to be included in a notice of appearance by paragraph (3) (which he may do notwithstanding that the grounds of the application are not stated) the Secretary shall send a copy of the notice of appearance to each other party."

Going back to the Chairman's decision which is under appeal, I remind myself it says: "In so far as it is necessary to grant an extension of time to validate the notice of appearance such an extension is granted". So the position was that the Chairman had received a combined IT3 on 9 September from LGTS. If it was out of time, then there was a deemed application for an extension of time. The letter that I have just read granted that extension in response to the deemed application that was made. It seems to us that that process cannot be faulted. There is no delay caused thereby to Mr Doshi because Case 74/97 is required to march together with Case 96/97 and 96/97 was not ready for hearing by any means. What the Chairman granted on 23 September did not put delay into Mr Doshi's way. It seems to us it was a sensible practical step to bring to an end confusion to which, it has to be said, Mr Doshi himself, but not alone, had also contributed. In any event, Mr Doshi was hardly in a position to require strict punctuality from his opponents because he had failed to comply with the order for particulars in Case 96/97 within fourteen days of 19 March; he had not served those particulars until 25 April. So we see nothing in that ground either.

The third ground, and this was touched on by Mr Narayan, was that the order of the Tribunal Chairman of 23 September contravened the dicta of the EAT in Case of Charlton and Charlton [1995] IRLR 79. The Charlton case contains the useful observations relating to cases where no appearance is entered within fourteen days after the Respondent receives a copy of the IT3. It indicates how a Respondent is to proceed after his application for an extension has been refused. It is quite plain why that case does not assist us. There has been no application for an extension which has been refused and the evidence, which is not countered, is that in any event the IT1 was not received. Accordingly that ground is of no help at all.

We have now dealt with all three grounds and also with Mr Narayan's argument in relation to the decision of the Chairman on 19 August. The 19 August decision itself is not under appeal but in any event it is accepted by Mr Narayan that a Chairman can review of his own motion and, accordingly, the fact that the parties were not warned that he was about to do that is, of itself, no ground for appeal. I emphasise, in any event, that it is not that decision which is here under appeal. Accordingly having dealt as best we can with all grounds that Mr Doshi has advanced, we dismiss the appeal.

It is the sort of procedural appeal which brings employment law into disrepute. There has been here no true regard for whether any real prejudice has been suffered by Mr Doshi as a result of the decisions under appeal. Rather the case is that an Appellant, who has himself been guilty of procedural confusion and has himself contributed to delay, is seeking to appeal against an entirely practical solution which the Chairman devised to meet the exigencies of the case. It does not do the law in this area any good if time and money is wasted on appeals which are not looking to the justice of the case but simply to extremely minor points of time-keeping and of punctuality. We dismiss the appeal.