United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE APPELLANTS NEITHER PRESENT NOR REPRESENTED
For the Respondent	MISS L WEINSTEIN (of Counsel) Instructed by: Mr D S Rosenblatt Messrs Ronald Fletcher & Co Solicitors 243 Elgin Avenue Maida Vale London W9 1NJ


 


MR JUSTICE MORISON (PRESIDENT): In this case the London Borough of Hammersmith and Fulham ["the Borough"] were adjudged to have discriminated against an employee of theirs, Miss Francis, in the respects set out in their decision which is contained in extended reasons and was sent to the parties on 5th June 1997. Following that determination on liability the Industrial Tribunal further considered what compensation should be awarded to the applicant and that decision is contained in extended reason form in writing and was sent to the parties on 17th November 1997.

The Borough presented a Notice of Appeal in which they complained of the award of £6,000 aggravated damages. Having done so, it then became necessary for an answer to be lodged. The Registrar informed the respondent that the answer was initially to be lodged by 30th March, although that was an extension of time. On an application by the employee's solicitors for a further extension, that was granted on 23rd March 1997 until 28th April 1998. When that was not complied with, the day before, a further application for a further extension of time until 19th May 1998 was requested, and that application was granted. On 22nd May 1998, that is outside the time limit previously granted, the employee's solicitors asked for a further extension time until 5th June 1998. The response to that request was an order made by the learned Registrar in which she said that it was ordered that a final extension of time be given and that the time for filing the respondent's answer be extended by a further 14 days to 5th June 1998. It was further ordered that unless the answer was received within that time the respondent would be debarred from defending the appeal.

The employee's then solicitors appear to have instructed Counsel at some time to settle the respondent's answer. It was not produced until 10th June 1998, that is five days beyond the final date, and was not sent to the Employment Appeal Tribunal until 17th June 1998. It would appear that those solicitors did not properly inform their client of the problems that had occurred, and indeed, were writing to her about the substantive hearing date for the appeal, which is to come on in November 1998.

The respondent's answer is in fairly short form, but it takes the position that the Industrial Tribunal did not err in law in the conclusions it reached in awarding aggravated damages.

Miss Weinstein, on behalf the respondent/employee, says that I should extend time in this case. I think on analysis what she is asking me to do is to allow an appeal against the Registrar's order dated 28th May 1998. Because having failed to comply with that order, the notification that the respondent was debarred from defending the appeal was an administrative act in response to the judicial order which the Registrar had made. It is not therefore against that administrative act that there can be any appeal or any application for an extension of time. It is rather an appeal against the Registrar's order under Rule 21 of the Employment Appeal Tribunal Rules.

This is not a case, therefore, where there has been a breach of our Rules, save incidentally, there was a breach in the sense that the answer was not lodged within time. What this is, is a case where there has been a breach of the Court's order. In one sense, that is more serious. The Court's orders are made and are to be obeyed. They are not to be haggled over or thought about or debated. They are to be obeyed without question. The Rules of Court, on the other hand, are of general application, unlike an order of the Court which is tailored to the particular facts of the particular case. Being of general application, there may be particular circumstances in a particular case which require the Rules to be relaxed in the sense of time being abridged or extended as the case might be.

I am satisfied that there is no proper explanation as to why the Order of the Court was not complied with. Indeed, it would appear that it was negligence or incompetence on the part of the former solicitors to Miss Francis that has brought that about, coupled with a failure to deal with her in an honest and open manner, by telling her what the problems were.

At the hearing of the appeal the Borough will be required to satisfy the Employment Appeal Tribunal that the Industrial Tribunal misdirected itself in law in its assessment of the aggravated damages part of the award for compensation. That will require them to put forward submissions in support of their arguments.

The Employment Appeal Tribunal's role is to asses whether there has been an error of law, and if there has, to take steps to remedy the injustice which would follow from such a misdirection.

In this case it is plain from the draft Notice of Response that has been put in, that all that the respondent wishes to do is to support what the tribunal has said.

I have not found this at all an easy matter to adjudicate on because Miss Weinstein has been unable to explain to me why, if I were to allow the appeal in this case, I would not be forced to allow an appeal in every other similar case, where an unless order has not been complied with in response to a respondent's answer. In terms of the merits of the position of the parties, there is no doubt that Miss Francis, the party herself, has been very badly let down by the legal representative who she retained in the past. It is no fault of hers that she is in this position.

I have ultimately been persuaded that I should take a quite exceptional course in this case. The reason why I feel able to do that in this case is because I do not believe that there will be any prejudice or extra time caused by the respondent's participation at the hearing of the appeal. The grounds of appeal are either going to succeed or they are not. I suspect that there is little that can be said on the part of Miss Francis which will assist in the deliberation which is going to have to take place in any event. There is going to be no need to enquire as to what happened before the Industrial Tribunal where a parties presence might be of assistance. If she is not going to take a particularly active part, I can see the argument for saying that she would suffer no prejudice from being struck out. On the other hand, I think it is unattractive for us to sit here with her no doubt in attendance on the appeal, refusing to hear anything that she wishes to put before us on the question at issue. But I should make it plain that this is a course which I am taking exceptionally in this case. I think it most unlikely that I will ever take this course again, because it undermines to some extent the principle which I mentioned earlier, which is that the Court orders are to be obeyed and complied with without question and that people who flout them are in danger of losing any opportunity to appear before us.

I am going to make an order as follows. The appeal against the Registrar's order dated 28th May 1998 be allowed. In place of the terms of the order, namely that a final extension do by given time for filing the respondent's answer to be extended by a further 14 days, I will substitute to be extended until close of business on 17th June 1998. By varying that order in that way, the respondent's answer will have been put in within time.