United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANTS/RESPONDENT
For the Respondent


 


MR JUSTICE LINDSAY: We have before us an interlocutory appeal listed as in the matter Jean and Guy Richardson against Ms P. Harrison. In fact, and strictly speaking, the matter is the other way around, in that Ms P. Harrison is the Applicant in the proceedings below and Jean and Guy Richardson are the Respondents.

It comes to us as a matter of urgency. We do not have complete papers and we have had extremely little time to see what few papers we have been sent. But the history of the matter, which is important to our determination, seems to be as follows; that a hearing of the complaint by Ms P. Harrison against Mr and Mrs Richardson was, at some stage, fixed for 18 December, namely tomorrow. It seems that that date was fixed at the request of Mr and Mrs Richardson and it looks also as if Mr and Mrs Richardson have been conducting their case "in person". No one appears before us today.

On 8 December 1997 Ms Harrison's Solicitors wrote a letter to the Industrial Tribunal saying that they did not wish there to be an adjournment of the hearing of 18 December. They said that there had previously been an adjournment at the Richardsons' request and they were wishing to oppose any further adjournment. They said that they would supply the Richardsons with "full documentation and list" by the evening of 9 December and they said that they would file a full statement and give it to the Respondent "at least 2 clear days before the hearing".

On 10 December 1997 the Industrial Tribunal acknowledged that letter to Ms Harrison's Solicitors. On the same day, 10 December, although we have not got this letter in our file, it seems that the Richardsons wrote to the Industrial Tribunal asking for a postponement, on the ground, as it would seem that they were having difficulty in assembling their witnesses for a hearing on the 18th, relatively close to Christmas.

On 11 December the Chairman sitting alone refused a postponement of the hearing saying, quite rightly, that witness orders could be obtained to procure the attendance of witnesses if they were otherwise intransigent. The 11th was last Thursday and, presumably, that letter was posted (it does not seem to have been faxed) and would have been received either last Friday or last Saturday.

On 15 December, that is to say this Monday, Mr Richardson renewed his request for an adjournment stating that he still had not received the "full documentation and list", that which had been promised to be in his hands by the evening of 9 December.

On 16 December, that is yesterday, at 10.15 am, still the position was that Mr Richardson had not received papers from the Applicants' Solicitors and on 16 December, again yesterday, at 14.40 the position still was that the Richardsons had not received the papers from the Applicants' Solicitors. They therefore lodged, by fax, a Notice of Appeal against the refusal of a postponement and what that Notice says is this (and it is by Mr Richardson):

"I applied to have the hearing set for 18.12.97 initially because of witness availability and the proximity of the date to the Christmas period. I have since been able to secure the attendance of witnesses.

I sent a further letter to the Tribunal on 15.12.97 after the Applicants' Solicitor failed to forward full documentation and list of witnesses as promised on 8.12.97.

It is now 1440 on 16 12.97, the afternoon post revealed no correspondence as promised. I therefore appeal to have this Tribunal postponed in order that I can take possession of the relevant documents and allow me to conduct a proper defence to the allegations made by the Applicant.

[signed] G Richardson."

We do not know the history of arrangements made for the hearing of 18 December and whether or not there have been previous adjournments or refused adjournments other than as we have indicated. We do not know whether the Applicant does, indeed, need to amend her claim, as has been suggested in the correspondence, because we do not have the IT1 or the IT3. We do not have the history of the matter other than the recent history that we have just set out.

We are quite unable to judge the importance or the relevance of the papers, namely the "full documentation and list" that the Applicants' Solicitors indicated in their letter of 8 December they would be supplying by 9 December, but certainly witness statements, one would expect, to be highly relevant to the conduct of a fair hearing.

We do not know the reasons why the Chairman refused the adjournment, as was indicated in his letter of 11 December. We do not even know the terms on which Mr Richardson, in his letter of 10 December, had asked for an adjournment, as that letter is not in our bundle.

However, the position obviously is that when the Chairman declined an adjournment on 11 December he could not know that, even as at 14.40 yesterday, and possibly even as at this time, quarter to noon today, the Applicant's Solicitors, that is to say Ms Harrison's Solicitors, had still not given the "full documentation and list" which it had been indicated would be served by 9 December. That being so, it could be that the Industrial Tribunal itself tomorrow, when it begins the hearing, may be willing to adjourn in the light of that circumstance that cannot have existed as at the 11th when the Chairman refused a postponement. Whether the absence of that information, - "full documentation and list", and, if it is the case, the absence of witness statements - is such as to justify a postponement or whether the case can proceed at least in part, is entirely a matter for the Industrial Tribunal that hears such an application, if it is made. But if they do grant an adjournment then plainly the matter now before us will become academic.

The proper course for us is to adjourn Mr and Mrs Richardson's appeal to the EAT generally, with liberty to restore it for hearing before the EAT. If Mr Richardson is truly of the view that he is unable fairly to present his case tomorrow for want of the promised papers and the promised witness statements, then we suggest (it is only a suggestion) that Mr Richardson's best course would be that he should apply to the Industrial Tribunal for an adjournment on that ground and should make that application as the first business of the day, at the full hearing before the Industrial Tribunal. He is at liberty to indicate that we suggest that that is a course that he should undertake.

If the Industrial Tribunal does not permit an adjournment on that basis then he should ask them to give their reasons, or at least an outline of their reasons, orally, if at all possible, so that he might then appeal forthwith, both against the refusal of 11 December (that would be by way of restored appeal) and against the refusal of 18 December (by way of fresh appeal). He may also then ask the Industrial Tribunal not to proceed further but to suspend the hearing until those appeals could be heard. But, of course, it will be a matter for the Tribunal and it may be that the Industrial Tribunal nonetheless will go ahead and continue, but, if they do and if Mr and Mrs Richardson have been truly prejudiced by that continuation, well then, that could, of course, itself amount to a ground of appeal if the full hearing does go ahead and if it goes against the Richardsons.

So, on that basis we adjourn the appeal generally, with liberty to restore, but before we conclude the case we must deal with some papers that have been handed up in the very course of our giving this judgment. They indicate that today, at 10.45, Mr Richardson has just received correspondence from Ms Harrison's Solicitor enclosing, it seems, copy statements of Pauline Harrison and Sarah Grey together with "a list of our client's documentation to be produced at the Tribunal", so that the papers, or some at least of the papers, earlier indicated to be in the Richardsons' hands by the evening of 9 December, have by now been received by Mr Richardson. The letter from Ms Harrison's Solicitor is said by Mr Richardson to be dated 9 December, as indeed it is, but he says that it was not mail-stamped until 15 December, and for second class post, which would certainly explain that it was not received until today, if that is the case.

It will, of course, be open to Mr and Mrs Richardson to complain to the Industrial Tribunal when they make an application, if they do tomorrow, for an adjournment in the way that we have indicated, that to have received the papers that were promised for the 9th only the morning of the day before the hearing is too late to expect the Richardsons reasonably to be able to cope with the hearing on the 18th. But whether that is so or not is, of course, a matter for the Industrial Tribunal and, given that we have so little knowledge of the case, we cannot comment on that.

Coming back to what we do, we simply adjourn the appeal generally, with liberty to restore, having given the indications of the better first course for Mr and Mrs Richardson to take, as earlier mentioned.