United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	MRS J WATSON (Representative)


 


JUDGE BYRT QC: This an appeal from an interlocutory decision of the Chairman of the Birmingham Industrial Tribunal contained in a letter dated 8th December 1997. By that decision he granted the respondent an extension of time for filing the Notice of Appearance, but he stated that it would have been reasonably practicable for the respondents to have presented the Notice of Appearance within time, and accordingly he made the appropriate order relating to costs.

The facts are quite short. The Originating Application was received at the Regional Office on 29th October 1997. In due course, that application was served on the respondents. A notice was received back by the Regional Office on 26th November. It is accepted by the respondents that that was a return of the Notice of Appearance which was out of time. Accompanying the Notice of Appearance, there was a letter dated 24th November in which the respondents' manager, who I understand is Mrs Watson, said that it was accepted that the Notice of Appearance was out of time, and then went on to stress the number of difficulties that she had to cope with in running this business. I do not think it is necessary for me to got through those in detail.

The Chairman treated that letter of 24th November as an application for an extension of time under Rule 15 and granted it. The appellant, Miss Waldron has been represented by a representative from the Birmingham TUC Centre for the Unemployed. He has submitted an extensive skeleton argument in support of this appeal against that decision.

In short, what he says, is that the Chairman failed to exercise his discretion in this matter judicially. He cites the case of Kwik Save Stores Ltd v Swaine [1997] ICR 49. This authority essentially states that when considering an application for an extension of time, the Chairman has to take into account the explanation he is tendered for the delay; has to consider the merits of the defence which is advanced by the respondents; and then after that, he has to carry out the balancing act considering the respective prejudice the parties would suffer if an extension of time was granted, or alternative, was not granted. What the appellant here says is that the respondents have advanced no adequate reason for the delay; that the letter of 24th November was unsupported by any documentary evidence; and it clearly showed that the respondents had been negligent.

So far as the legal position is concerned, the Chairman has to carry out a balancing act. He has to consider the merits of the defence, he has to consider the explanations for the delay and thereafter consider the prejudice suffered by the respective parties one way and the other. He has to balance those factors together and come to a decision in the exercise of his discretion. Provided this tribunal is satisfied that he had taken into account all the appropriate factors that he should have taken into account and not taken anything into account that he should not have taken, and had come to a decision which, on the face of it appears to be reasonable, it is not for us to disturb the decision of the Chairman.

One only has to contemplate the prejudice that this respondent would have suffered if an extension of time had not been granted, so that the Notice of Appearance was debarred from being entered, to see that the respondents would have been driven from the seat of justice. One can well understand, and indeed, we consider it totally reasonable that the Chairman should have come to the conclusion that he did.

In those circumstances, we think it right we should dismiss this appeal.