United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an interlocutory appeal by the applicant before the Leeds Industrial Tribunal, Mr Bruce against various orders made by a Chairman or Chairmen, culminating in an order made by Mr P A Morris on 29th December 1997 striking out the Originating Application for failure to respond timeously to an order for Further and Better Particulars dated 3rd December 1997.

At this preliminary hearing our task is to establish whether or not there is any arguable point or points of law to go to a full appeal hearing, and if so, to give any necessary consequential directions.

The claim is brought by the appellant under the provisions of the Disability Discrimination Act 1995. He is a recently admitted solicitor. The complaint against the respondent firm of solicitors relates to an application by the appellant for a vacant post for a newly qualified solicitor to be engaged in the Defendant's Insurance work. He was informed on 1st July 1997 that his application was unsuccessful without his being called for interview. He contends that he was less favourably treated on the grounds of his disability.

We shall not set out each twist and turn of the interlocutory steps taken thus far. It is sufficient to trace the events leading to the strike out order.

On 19th November 1997 the respondent served a request for Further and Better Particulars of the Originating Application which had been presented on 30th September 1997.

On 3rd December 1997 the Industrial Tribunal made an order for those Particulars to be served on the respondent by 17th December 1997. That order was varied on application by the appellant to delete Request E in the Schedule to the order. On 18th December the respondent's solicitors complained to the tribunal that the appellant had failed to comply with the order as varied and they applied for a strike out order. On 19th December the tribunal wrote the appellant, giving him an opportunity to show cause under rule 4(7) of the Industrial Tribunal Rules of Procedure as to why a strike out order should not be made. He responded by letter dated 20th December, purporting to answer Requests A-D in the Schedule to the tribunal's order. On 22nd December the respondent's solicitors wrote to the tribunal complaining that the appellant's response did not fully comply with the order. On 29th December Mr Morris struck out the Originating Application for the short reasons promulgated with his decision on that date.

In this appeal the appellant raises a number of issues, none of which matter unless he can show an arguable point of law relating to the strike out order.

As to that, in correspondence the respondent has relied upon the judgment of Waite J in Medallion Holidays v Birch [1985] ICR 578, in which this tribunal declined to interfere with an order made by the Industrial Tribunal striking out the respondent's Notice of Appearance. That case makes clear that we have no power to interfere with an Industrial Tribunal order of this kind unless an error of law is first made out.

However, we must also consider the approach taken by this tribunal in National Grid Co v Virdee [1992] IRLR 555, where Wood J, having considered the Medallion case, drew attention to the approach in the High Court to striking out cases, and in particular the observation at paragraph 26 of the report that striking out powers under rule 4 ought only to be used in cases where any judgment ultimately obtained could not be considered to be fair between the parties.

In these circumstances we are satisfied that the appeal is arguable and ought to proceed to a full hearing.

We have considered whether or not we should limit the issues for argument at that hearing. Having considered the way the matter is put in the recent skeleton argument submitted by the appellant (he tell us with some assistance from Counsel) we shall not so limit the issues. Further, if the appeal against the strike out order succeeds, this tribunal may wish to consider exercising its powers under s. 35(1) of the Industrial Tribunals Act 1996 to make further consequential directions for the future conduct of the proceedings as an alternative to remitting the matter to the Industrial Tribunal. That will then bring into play the orders already made, and which are presently the subject of further grounds of appeal.

We should also mention one specific matter raised by Mr Bruce, the question of the anonymity of Chairmen who make interlocutory orders without a hearing. Whether or not the failure to identify the Chairmen amounts to an error of law is highly debatable. However, we think that the practice ought to be reviewed by this Appeal Tribunal.

Turning now to the directions which we give for the full hearing. We shall list this case for four hours. Category B. There will be exchange of skeleton arguments between the parties and copies to be lodged with this tribunal not less than 14 days before the date fixed for the hearing.