United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LEON STRINGER (of Counsel)
For the Respondent	MS LYDIA SEYMOUR (of Counsel) The Solicitor London Borough of Lambeth Lambeth Town Hall Brixton Hill London SW2 1RW


 


MR JUSTICE LINDSAY: We have before us by way of a final hearing appeal of Ms D E Chambers in the matters Chambers v The London Borough of Lambeth. By a decision sent to the parties on 3 April 1997 but signed by the Chairman on 14 March 1997 an order was made as follows:

"In exercise of powers conferred on me under Rule 4(7) of the Industrial Tribunals Rules of Procedure 1993, I order that the Originating Application be struck out for the Applicant's failure to comply with the Tribunal's Order for Further Particulars dated 4th December 1996."

It is necessary to go into the procedural history of the matter. On 27 April 1996 Ms Chambers, who has acted in person for the greater part of the case but who has been represented before us by Mr Stringer, lodged her IT1 complaining of race relations and breach of contract. She put in some one-and-a-half pages of explanation. She was claiming racial discrimination running from May 1995 and continuing after 22 February 1996 but, notwithstanding that she set something out, one can see that there was relatively little detail. On 14 May 1996 Lambeth put in their IT3 and on 15 May 1996 Ms Chambers submitted a race questionnaire to Lambeth.

Lambeth was concerned, we apprehend, that there was not sufficient detail to know precisely what it was that Ms Chambers was complaining about and on 4 December 1996 an Order for further and better particulars was made. The Order says this:

"The Tribunal HEREBY ORDERS that on or before 14 days the Applicant shall supply in writing to the Respondent and to this office the following Further Particulars of the Originating Application:

as requested in Respondent's letter of request dated 4th October 1996 (copy attached)

Failure to comply with this Order may result in the whole or part of the Application being struck out before or at the hearing.

Dated 04 December 1996

BELINDA BENNETT (Signed)

For Regional Secretary of the Tribunals"

It indicates that that Order was issued on the application of the Respondent.

The reference there to "this office" is clear enough because the matter is headed "The Industrial Tribunals, Montague Court, 101 London Road, West Croydon, Surrey, CR0 2RF." "On or before 14 days" is a very strange direction for an Order failure to comply with which is said possibly to lead to the application being struck out. When is time to start? One might reasonably assume that it was 4 December which was the starting point but it is not at all clear what is meant by "on or before 14 days". It is to be borne in mind that Ms Chambers, at all events until very recently, has acted in person and it does behove Tribunals and parties to be clear in their language when they are dealing with litigants in person. However, let us assume in favour of the Tribunal and the Respondent Lambeth that "on or before 14 days" means "on or before the expiry of 14 days from 4 December".

The position was that no particulars were received by the Tribunal, in other words by "this office" within the 14-day period. It may be that none were received, either, by Lambeth during that period. There was then an oral hearing on 24 January 1997. Ms Chambers attended that hearing and opportunity was given to her to show cause why no strike-out should be made, although no notice warning her that she was then required to show cause had been given to her ahead of the hearing. The outcome was that a fresh Order was made; the result of the hearing of 24 January 1997 was that on 31 January 1997 there was promulgated a further Order.

It is a strange document in that it is split into nine separate paragraphs, followed by notes. It says:

"Having heard the applicant in person and Miss Vig on behalf of the respondent and having discussed the issues arising in this case and matters necessary to ensure an expeditious and fair hearing of those issues I hereby make the following orders and directions:

1. The Applicant having failed to comply with the Order of this Tribunal dated 4 December 1996 for further particulars of the Originating Application and having listened to the Applicant's reasons for such failure and having considered whether the Originating Application should be struck out under rule 4(7) of the Industrial Tribunals Rules of Procedure 1993 the Applicant is Ordered on or before 12 February 1997 to supply in writing to the Respondent and to this office the further particulars in accordance with that Order failing which the Originating Application will be struck out for failure to comply with the original order."

Miss Chambers was given the opportunity to address the Tribunal and she presumably satisfied them that for either procedural or other reasons she should not be struck out there and then and the fresh Order was made. Again, the expression was used "to this office" but in this second case there appears to be no address to which that referred. Again, it is reasonable to take the point that a Tribunal should make its Orders manifestly clear to litigants in person.

The point might arise whether, after the promulgation of that Order on 31 January, the Order of 4 December was entirely spent; after all this is a fresh Order, the Applicant is ordered on or before 12 February 1997 to supply in writing and so on, the particulars. We leave that point on the side for the moment.

The Order of 31 January has to it notes, three paragraphs of them. Quite what rule was thought to empower the making of notes and quite what the effect of notes would be is a matter that could be debated but has not been. It is not, we think, necessary to do so, but note 2 says this:

"To the extent that this order is made under Rule 4(1) or (3) of the 1993 Rules, failure to comply with order by either party may result in the whole or part of the Originating Application or the Notice of Appearance as appropriate being struck out and/or, where appropriate, a direction made that the respondent shall be debarred from defending altogether."

Note 3 says:

"The tribunal has power to vary this order on the application of the person to whom it is directed but can only do so for good reason. Any application to vary this order must be made in writing."

In order that a litigant in person could make sense of that note, he or she has to be able to determine whether and to what extent the Order had been made under Rule 4(1) or 4(3), not a subject that might come easily to some litigants in person. Moreover, that note speaks of the possibility of a Notice of Appearance being struck out as a consequence of failure to comply with the Order, which would serve, we think, only to confuse Ms Chambers. It certainly would not concern her whether the Notice of Appearance was struck out.

The reference to the Tribunal having power to vary the Order is relied upon by Ms Seymour as some indication that Ms Chambers was, in fact, given a notice to show cause, but notice to show cause under the relevant Rule, which we shall come on to, is notice to show cause why there should be no striking out. Variation of an Order is a quite different subject from whether the non-compliance with the Order should be visited with a striking out.

So it was that that Order of 31 January was made. The next step is the Order that was made and promulgated on 3 April 1997, the effect of which we have already recited. It is important to grasp how that came to be made. There was no hearing before the Chairman on 14 March or, indeed, before the promulgation of the Order on 3 April. The Chairman did not hear the London Borough of Lambeth, he did not hear Ms Chambers and Ms Chambers had not received the standard form or, indeed, any other form that warned her that she was about to be struck out unless she showed cause to the contrary. Mr Stringer points out that there is a standard form (and those Members sitting with me are familiar with it) that is habitually used as a notice of show cause in these matters.

So there was no hearing that led to the Order of 3 April. There had been no notice to show cause in a standard or any other form sent prior to it and the Chairman, accordingly, not having heard from Lambeth or from Ms Chambers, had no knowledge of what the up-to-date situation was. It is, in fact, now accepted that by then Lambeth had received particulars - we leave aside for the moment whether those particular fully complied with the Order - they had received their copy of the particulars but, of course, the Chairman had no knowledge of that.

Let us go to the applicable Rules. The only power to order particulars of any relevance to this case is the power in Rule 4(1)(a). The only relevant and applicable rules under which particulars can be ordered are the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule I which we find at [2267] page 1133 of the current Butterworths Employment Law Handbook:

"(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."

That formulation - "to the person specified by the Tribunal" - is interesting because it does pose the doubt as to whether a direction to supply "to this office" is a direction by which a person is specified but, for all that, continuing with the rest of the Rule and leaving aside (b) because that is irrelevant:

"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."

The sanction is to be found in 4(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: [now we come to the most important words for our purposes] 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." (Emphasis added.)

That last part appears to be mandatory: "shall not so strike out ... unless it has sent notice to the party".

The notice required to be sent has to be in writing and for that one goes to Rule 20(1) which is at page 1143 in Butterworths:

"(1) Any notice given under these rules shall be in writing.

...

(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at -"

There is then a whole series of provisions for what is good delivery.

There was no notice sent after the Order of 4 December 1996 in relation to the Order of 4 December 1996. True, it was that there was a hearing at which Ms Chambers was given an opportunity to show cause why she should not be struck out - that was the hearing of 24 January - but there had, in fact, been no notice. Moreover, there had been no notice given after 31 January 1997 as to the Order of 30 January 1997 before the striking out on 14 March.

We do not feel able to treat any part of the Order of 31 January as representing a notice to show cause. The essential invitation to show cause is not within that Order. There would, in any case, be some form of difficulty because we have had cited to us Becard Property Management & Construction Co Ltd v Day [1984] ICR 837, a decision of the Employment Appeal Tribunal presided over by Mr Justice Waite. That makes it clear that it is an essential ingredient of a notice to show cause that it should be served after non-compliance. Well, of course, there could not have been non-compliance with the Order of 31 January on 31 January. We add that there is nothing in Becard that in any way suggests that the formal requirements of Rule 4(7) can be overlooked.

Can the omission of a strict notice of show cause be waived? The Tribunal can regulate its own procedure, Rule 13(1), but it can only do so:

"Subject to the provisions of these rules".

The importance of the notice to show cause procedure is really emphasized by Rule 13. It is repeated in relation to 13(d), (e) and (f):

"(2) A tribunal may -

...

(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious;"

Subparagraphs (e) and (f) also provide for strikings out in various other contingencies but each time they are subject to paragraph 3 of Rule 13. Paragraph 3 of Rule 13 provides that the notice to show cause machinery is again introduced, but there with a specific exception. Rule 13(3) says this:

"Before making an order under sub-paragraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

There one has the notice to show cause machinery but with a specific exception permissible. The fact that there is there an express exception in Rule 13 emphasises that unless there is some specific form of exception there is no general power simply to waive compliance with the Rule because if there had been some general power to waive compliance with the rule, that exception in Rule 13(3) would not have needed to be created. It is noticeable, also, that the provisions of provisions of Rule 13(4) only apply to notices under 13(3). We have not had our attention drawn to any general power to waive the strict requirements of 4(7).

Ms Chambers was given an opportunity on 24 January to say why there should be no striking out for failure to comply with the Order of 4 December but she never had had a notice inviting her to do so. The object of the notice to show cause procedure is so that the party who receives it can arm himself or herself against the coming trouble. They are warned what it is that will be in issue and prepare themselves against it. Simply to give an opportunity without the warning is not what the Rule requires. Had this case been a case within Rule 13(3) then it might have sufficed merely to give the opportunity but under Rule 4(7) the giving of an opportunity alone is not enough, there has to be a notice in advance of the opportunity but there was not, and this is apart from an examination of the position at 31 January. We would have real doubts as to whether, after the Order of 31 January had been promulgated, it was open to complain of a breach of the Order of 4 December. It might well have been spent by then and supplanted by the latter Order. That we do not need to speculate upon because it seems to us that here we have a situation in which for there to be a striking out there had to be a notice to show cause. There was not a notice to show cause relative to the Order of 4 December, there was not a notice to show cause relative to the Order of 31 January. The importance of a notice to show cause is emphasized here because if one had been given then the Chairman might have had addressed to him the sort of points that have been made by Mr Stringer. They were that there was no contumelious default, that particulars had in fact been, as is accepted, supplied before 14 March to the Respondent, that the Appellant before us, Ms Chambers, had not realized that "to this office" meant that she had to send a copy to the Industrial Tribunal but rather that she thought that it had been a reference to the office of Lambeth. Moreover, the Chairman, had a notice to show cause served, might well have been addressed as to Ms Chamber's mental or physical condition which, to judge from what Mr Stringer has told us, might possibly have led to factors in her favour.

We do not need to speculate on what the position would have been if only notice to show cause had been served; we simply say that without the notice to show cause the Order of 3 April could not properly have been made. There is an error of law and, accordingly, we allow the appeal. We undo the striking out; we remit the matter to the Industrial Tribunal for further directions. If it transpires that, properly examined, the particulars supplied are inadequate, there is nothing that precludes a fresh attempt at a strike out but, simply dealing with this attempt at a strike out, it failed.