United Kingdom Employment Appeal Tribunal

APPEARANCES

 

EAT/14/99 For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
EAT/82/99 For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY: We have before us in this matter as a preliminary hearing two notices of appeal but before we come on to them there is something of a procedural background to explain.

The appeals were first listed for hearing on 28 April. On 27 April the Employment Appeal Tribunal received a fax from Messrs Olufeko and Co, Solicitors. It was received at 5.15 in the evening and by then the office was closed. Messrs Olufeko sought an adjournment on Mr Stanislas' behalf although indicating that they wished to come off the record for him and were not acting further for him, if, indeed, they had ever been on the record for him. Because of its late arrival that fax was not seen by the EAT in any real way until the next morning.

The history of Mr Stanislas' cases involves many adjournments and delays and, it was therefore seen appropriate to warn Mr Stanislas as to the adjourned hearing of his two Notices of Appeal. On 28 April a fax was sent to him in the afternoon at 15.06 (or at least sent to his Solicitors, Olufeko & Co and also to another firm of Solicitors, Pascalides & Co who had earlier acted for him and a copy of it was posted, I am told, to Mr Stanislas at the address that the EAT has for him). Those communications indicated that the matter was adjourned until 5 May, that is to say today at 10.30. That is the hour at the moment. He was warned that if he did not then attend in person or by a representative the matters would be heard in his absence, that if any further adjournment was then to be sought it must be supported by formal evidence lodged here by not later than 10.30 on 4 May, and that any attempt to rely upon medical grounds was equally to be supported by formal evidence from a medical professional lodged here by that time setting out fully the reasons why the adjournment was necessary and so on.

Nothing was heard whatsoever from Mr Stanislas until this morning when a fax had arrived marked "5 May 11.09". Presumably Mr Stanislas' fax is still an hour out and it was 10.09 at which it was sent; that would be consistent with the time at which we saw it, shortly thereafter. It is a long letter in which Mr Stanislas indicates that he will not be attending today. It does not actually ask for an adjournment. We have considered that letter, but we see it right to proceed with the two appeals in his absence.

Coming on, then, to the appeals, we deal first with the Notice of Appeal of 4 December 1998. In broadest outline, in that Notice of Appeal Mr Stanislas appeals against the refusal of an adjournment, the striking out of some of his complaints, a decision as to costs, the refusing of a review of an earlier order and another decision as to costs, awarding costs against him. All that is embraced within a decision promulgated on 26 October 1998. We will put aside, for the moment, the question of the refusal of an adjournment because if the substantive case itself is struck out then a refusal to adjourn it is of no significance.

Looking at the points separately we are first concerned with the decision taken by Mr P. Robjant as Chairman and the two Members, Mr Stent and Mrs Tobin, after a hearing on 5 October 1998 and promulgated on the 26th. The decision was unanimous:

"1) The application made in correspondence on behalf of Mr Stanislas that the hearing of today's application be adjourned is dismissed.

2) Pursuant to Rule 9(3) the Tribunal resolved to dispose of the Respondents' applications in the absence of Mr Stanislas.

3) The applications made by Mr Stanislas numbered 1200441/96, 1200563/97, 1201876/97 are struck out.

4) The Respondents' counter-claim, case number 1202150/97, is dismissed on withdrawal by the Respondents."

So far as concerns the striking out of the claims it was effected under Rule 9, paragraph 3 and Rule 13 (2)(e) and 13(2)(f) and the striking out applies to four separate claims, the last numbers of which were 441/96, 563/97, 876/97 and 150/97. There is a long procedural history, but it is not necessary for immediate purposes to go back earlier than 22 September 1998. On 22 September Mr Stanislas had been refused an adjournment. This is the subject of the appeal later to be dealt with. The Chairman directed the hearing to continue as from 10.00 am on the 23rd, the next day. Looking at paragraph 23 the Tribunal held:

"He directed that a medical certificate should be provided by 10.00 am on Wednesday, which would address specifically Mr Stanislas' ability to proceed with the Tribunal hearing. The hearing was adjourned at 11.12 am, without having recommenced any hearing of evidence."

Later that day a fax was received and the Tribunal mention that in their paragraph 24:

"At approximately 6.30 pm on Tuesday 22nd September, the Tribunal received by fax a certificate from Dr Devnani which says:

'Perry Charles Stanislas D.O.B. 13-10-61

This is to certify that the above named patient suffers from anxiety state and he is under treatment for this condition.

Therefore, he is unable to present his own case.

Thanking you.

Sincerely yours.

S Devnani'."

On 23 September the partner of Mr Stanislas faxed the Tribunal asking for an adjournment saying:

"Please address any further correspondence to his solicitors, Pascalides & Co, 243 Grays In Road, London [and a post code was given]."

But on the very same day - and the Tribunal records this:

"On the same day Pascalides & Co wrote to the Tribunal objecting to being placed 'on the record'."

So that simultaneously, the Tribunal was being asked that contact be made with the Solicitors, whilst the Solicitors themselves are objecting to being put on the record.

The matter proceeded on 23 September. Reference is made to this in paragraph 26 of the decision, and it includes reference to Miss Lang who was representing the Respondent employer. What was said then, in the paragraph, is this:

"On Wednesday 23rd September, Miss Lang attended with the Respondents' witnesses and documents. Mr Stanislas did not attend and was not represented. Miss Lang submitted a formal application to strike out the Applicant's applications. She sought in the alternative an Order that the hearing should proceed in the absence of Mr Stanislas. She also sought an Order for costs under Rule 12(4) for the costs thrown away as the result of the adjourned hearings. The Tribunal directed that formal notice of the applications be served by post upon the Applicant at his home address, and both by post and fax on his new solicitors Pascalides & Co, in the light of the instruction received in Miss Francis' [that is a reference to the partner's name] letter of 23rd September. The hearing was to be adjourned to Monday 5th October. If Mr Stanislas wished to rely on any medical evidence, then the Order provided:

' ... that he should ensure that competent medical evidence or a full medical report (not just a brief certificate) is available for the Tribunal so that the Tribunal are made aware of exactly what limitations his health imposes on Mr Stanislas and how long those limitations are likely to last, and indeed what relevance those limitations have to the hearing of the applications'."

So by now there had been an adjournment till 5 October. In paragraph 27 the Tribunal says:

"Although Rule 13(3) requires formal notice to be given of an application to strike out, it does not specify the length of that notice. It was the Tribunal's view, that an adjournment to Monday 5th October (a date on which the substantive hearing had been listed in any event) would give the Applicant ample time to seek advice both from his legal and medical advisors, and to ensure, if he were not able to attend in person or by representative, that there would at least be some written submissions both as to the issue of striking out, and as to the issue of Mr Stanislas' health."

However, when 5 October arrived, again Mr Stanislas failed to appear. That is dealt with in paragraph 28 of the decision:

"On Monday 5th October 1998, Miss Lang and the Respondents' witnesses attended. A telephone message was received from Miss Francis to the effect that Mr Stanislas would be unable to attend. No representative attended on his behalf. Miss Francis had written letters to the Tribunal on behalf of Mr Stanislas on 22nd, 23rd and 26th September. There were no further submissions as to the merits of the issues that the Tribunal were to consider - other than the issue of adjournment - and no further medical evidence."

So the Tribunal then pondered how best to proceed in this procedural quagmire, and they dealt with that in paragraph 29:

"The Tribunal considered at the outset, how it should proceed, in the light of the Applicant's failure to attend, or be represented, and in the light of the provisions of Rule 9(3). The Tribunal was not prepared to come to a conclusion at the outset of the hearing as to whether or not the matter could properly be adjudicated in the Applicant's absence: but the Tribunal directed that the Respondents should call their evidence, and that the issue of the Applicant's absence would be a primary issue for the Tribunal to consider in its decision."

So the Tribunal then dealt with the procedural matters before it on the basis of material and evidence produced at the hearing by the Respondents, and they made a number of material findings. Thus, in paragraph 35 (a) to (f) and (i), (k), (l), they say:

"(a) There have been persistent failures on the part of the Applicant to comply with the Orders for exchange of witness statements, until the very last moment, when five statements had been produced after the hearing before the Employment Appeal Tribunal on 16th September. ...

(b) There have been consistent failures by the Applicant to attend or be prepared for the Tribunal hearing.

(c) There have been repeated applications for adjournments made by or on behalf of the Applicant, which in many cases sought to repeat applications already determined by the Tribunal.

(d) Mr Stanislas had failed to make proper arrangements for the service of documents upon him. ...

(e) Mr Stanislas failed to prepare documents for the hearing in an orderly manner. ...

(f) There has been a pattern of failure of representation. Mr Johnstone was replaced by Mr Maudsley and then in turn Mr Maudsley was again replaced by Mr Johnstone, and now Mr Stanislas seeks to be represented by Pascalides & Co. ..." [One might add that since then Pascalides & Co have withdrawn, Olufeko & Co seem to have been instructed and Oluefeko have withdrawn].

(i) There are four occasions on which Mr Stanislas has claimed that he cannot attend or proceed because he is unwell. Yet the medical evidence that has been produced is perfunctory.

(k) It is within the knowledge of the Tribunal that the Respondents have attended every interlocutory hearing either by solicitor or by Counsel, and that they have attended the listed hearings both in March and September with Counsel, instructing solicitor, and two or three of the individual Respondents.

(l) This has involved preparation for and attendance at six interlocutory hearings before 14th September 1998, and six further hearings on and after 14th September 1998. There have been four occasions when Mr Stanislas claimed to be unable to proceed through ill health (2nd March, 10th March, 22nd September and 5th October), three occasions when he complained that he had been let down by his lawyers (2nd March, 9th/10th March 1998, and 14th September), and three occasions when the Tribunal considered an application by the Respondents to strike out the Originating Applications (9th March, 21st August and 5th October)."

Having set out the chronology and those shortcomings, they then turned to consider striking out in the light of the facts as found. They said in their paragraph 36:

"We have considered the law on striking out. We accept Miss Lang's submissions as to the law. We are conscious that striking out is a serious step to take. Rule 13(2)(e) provides that a Tribunal may strike out an Originating Application 'on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Applicant ... has been scandalous, frivolous or vexatious'."

So they had the material parts of the Rule in front of them. Miss Lang, in the best traditions of representation, drew attention to some features of the case against her. She drew attention (and this is set out in paragraph 37 of the decision) to a passage in Ashmore v British Coal Corporation [1990] IRLR 283, which she laid before the Tribunal. So far as concerns the medical position, the Tribunal held, in their paragraphs 44 and 45:

"44 ... The medical evidence that is available, is difficult to reconcile with the Tribunal's experience of Mr Stanislas, who appears as a competent and articulate advocate, and who claims in a letter written on 7th July 1996 to: ' ... have dealt with more industrial relations problems than [Mr O'Byrne] could shake a stick at'.

45 Against this background the Tribunal can only conclude that there is no reliable medical evidence to support the Applicant's claim for an adjournment, or to excuse his failure to attend to the proceedings on 23rd September and 5th October. If it were the case that this Applicant is genuinely unwell, as his partner Miss Francis states in her letter to the Tribunal, then there is all the more reason why clear medical evidence to that effect should be provided. In the absence of such evidence, we must weigh the interests of the Respondents against those of the Applicant, and must conclude that there is no medical evidence which justifies an adjournment beyond that granted on 22nd and 23rd September. We can find nothing to contradict the Respondents' contention, that there is some doubt as to the nature of Mr Stanislas' illness: and that is he is suffering from stress, it may well have been caused by his own mismanagement of the conduct of these proceedings."

The Employment Tribunal very properly looked at what one might call "the merits" of any case that Mr Stanislas was advancing and they said in their paragraphs 49 and 50:

"49. We have therefore considered the Applicant's evidence. We have read the Applicant's own statement, and those statements of witnesses that he has been able to provide. We have asked ourselves the question, whether the matters revealed in those statements are so serious, and appear so likely to be made out in evidence, that an Order to strike out would deprive the Applicant of the opportunity of demonstrating a strong and well argued case that would be likely to result in a successful finding in the Tribunal.

50. But having read Mr Stanislas' statement, we find it full of opinion and hyperbole. ..."

They found him to have been consistently in breach of Employment Tribunal Orders. In paragraph 56 they say:

"We have no difficulty in finding that the Applicant has not only been in breach of the Tribunal's Orders, but has been consistently in breach. The Applicant has sought to adjourn or delay the hearing of his application time and time again. Two earlier applications by the Respondents that the Originating Applications be struck out had been dismissed, so that the Applicant would have been well aware from the Tribunal's adjudications on those occasions, of the serious risk that he faced. Since the commencement of the substantive hearing on 14th September, the Tribunal has met on six occasions (14th, 17th, 21st, 22nd, 23rd September and 5th October). But in all this time, it has heard only 2 hours and 35 minutes of evidence."

There had been held to be, the Employment Tribunal said, a failure to prosecute within the terms of Rule 13(2)(f). As to the broad question of the ability at that juncture still to be able to obtain a just and fair hearing of the basic issues raised in the complaint, the Tribunal held in their paragraph 60:

"Just as the Applicant has a right to a fair - and prompt - trial, so do the Respondents. We are satisfied that the Applicant's conduct of the matter and the delays incurred so far have frustrated that right. ..."

The Employment Tribunal carefully considered whether to proceed with a striking out in his absence and, in their paragraph 70, they say:

"Against this background, we have come to the conclusion that it would be unjust for these proceedings to continue, since there can be no guarantee of a prompt and fair trial, whether the Applicant was to attend or not. An adjournment would be equally unjust. We are therefore left with no alternative but to accede to the Respondents' application that the Originating Applications be struck out."

The fairness, the care and the patience reflected in this very long decision (over 20 close-type pages) can only be admired, even envied. We are entirely unable to discern any error of law in what is, after all, a matter of discretion. The appeal against the striking out is therefore dismissed, even at the preliminary stage. No point of law with any arguable prospect of success has been spotted by us in our search through the papers.

Turning then to the question of the refusal of an adjournment on 5 October, the ground had been covered by the Employment Tribunal in their long decision. There is, of course, no serious point in adjourning the case if, in any event, it merits being struck out. The Employment Tribunal held in paragraph 46:

"We see no proper ground on which such an adjournment can be granted."

That, it seems to us, cannot be faulted either in law or in common sense and we dismiss the appeal as to that. No arguable point of law emerges on that part of the case.

Turning to costs, the Tribunal dealt with that at the end of their long decision. In paragraphs 72 and 73, they record as follows:

"72. Miss Lang then went on to deal with the application for costs under Rule 12(4). We are satisfied from the estimate that the Respondents have provided, that the additional costs to the Respondents, thrown away as a result of the adjournments on 22nd and 23rd September, are of the order of £3710. Miss Lang limits her application to the round figure of £500.

73. The Tribunal are satisfied that the adjournments have been at the behest of the Applicant, and that the Respondents' application for costs is a proper application. Rule 12(4) does not require any element of fault or misconduct on the part of the party seeking the adjournment: it is a balancing exercise for the Tribunal to make an appropriate Order in compensation for the costs of the adjournment. We therefore have no hesitation in making an Order that the Applicant should pay the Respondents the sum of £500, pursuant to Rule 12(4)."

We find no error of law in that part of the case and dismiss the appeal, even at the interlocutory stage. No arguable point emerges.

As to the review of costs, this does involve going back into the earlier history than that which we have so far covered, but only briefly. The Employment Tribunal referred in their paragraphs 6 and 7 as follows:

"6. On 23rd February 1998, the Applicant's solicitors wrote to the Tribunal to seek an Order under Rule 4(3). An interlocutory hearing was fixed for 2nd March. Neither the Applicant nor his solicitors attended. ... The result of the hearing was that the application under Rule 4(3) was dismissed, the Applicant was ordered to pay costs of £500. ...

7. ... The Tribunal also considered an application for a Review of the Order for costs made on 2nd March, and directed that that issue should be dealt with at the end of the substantive hearing."

And, indeed, it was dealt with at the end of the substantive hearing, because in paragraphs 74 and 75, the Tribunal record as follows:

"74. Miss Lang made no other application for costs, but she did remind the Tribunal that there was an outstanding application by the Applicant for a Review of the Chairman's Order of 2nd March 1998.

75. The Tribunal have considered the history of the Order for costs made on 2nd March. In the absence of the Applicant, or of any other evidence to justify a Review, the application for a Review is dismissed. The Order for costs of 2nd March 1998 is, therefore, confirmed."

Again, we see no arguable point of law emerging on that part of the case and, so far as concerns the Notice of Appeal dated 4 December 1998, we have dealt with every aspect and dismiss it at this interlocutory stage. But that leaves the other Notice of Appeal of 21 September 1998 and that relates to the hearing on that day. What was ordered then, before the same Chairman and Members, was as follows.

"(1) The applicant's application for an adjournment is dismissed.

(2) The applicant is directed to prepare six paginated bundles of any additional documents to which he wishes to refer during the course of his evidence."

Reasons were given and the first four paragraphs of the decision are as follows:

"1. This matter was first listed for hearing in March of this year. Following the grant of an adjournment on 10th March, it was listed for 20 days commencing Monday 14th September 1998. On Monday 14th September the Tribunal decided, having heard submissions from both parties, that the hearing would be adjourned until Thursday 17th September to enable an interlocutory appeal to take place before the Employment Appeal Tribunal on Wednesday 16th September.

2. When the Tribunal reconvened on Thursday 17th September, a further adjournment was ordered to allow Mr Stanislas the opportunity of interviewing his witnesses before the hearing commenced today, as the Employment Appeal Tribunal had recommended.

3. This morning, Monday 21st September, Mr Stanislas has renewed the application for a 4 to 6 week adjournment presented to the Tribunal at the outset of the hearing last Monday, 14th September. He does so on the basis that he requires time to instruct his new solicitors, and on the basis of their letter to the Tribunal which arrived, it appears, at 5.15 pm on Friday 18th September saying 'we require at least 28 days enabling us to prepare the case'.

4. Pascalides and Co have not attended today to represent Mr Stanislas on this application for an adjournment but Mr Stanislas says that they are keen to take the case. ..."

The application was opposed and that is dealt with in paragraph 5:

"Miss Lang has opposed this application for an adjournment. She points out that it is the second application for an adjournment of the substantive hearing to have been made after the date fixed for the commencement of that hearing. She says that an adjournment would cause substantial inconvenience and cost to the respondents. She points to the fact that the events on which Mr Stanislas relies go back to the early 1990s, one application having been issued in October 1996, the second in March 1997, and the third in August 1997. Miss Lang also points to the strong encouragement received from the President of the Employment Appeal Tribunal at the hearing on 16 September, to ensure that this matter was properly heard within the time allotted to it."

The Employment Tribunal weighed up a number of factors and, in their paragraph 9, they say:

"We have come to the conclusion that any further delay would not be in the interests of justice. We have therefore come to the decision that we must reject the application for an adjournment."

And then they turn to the chaotic state of the documents before them, as they were at the time. That is dealt with in paragraphs 10, 11, 12, and 13 of their decision which I will not read out, but which can be taken to be incorporated in this judgment.

In the course of 21 September, Miss Francis, the partner of Mr Stanislas, had lodged a Notice of Appeal to the Employment Appeal Tribunal relative to the Employment Tribunal's business of that very day. It seems to us it would be entirely futile to go further into whether or not it was an error of law on 21 September 1998 to decline to adjourn a case which, in any event, as explained under the other appeal, has been struck out on independent grounds, and where the appeal against that striking out has already failed. But, in any event, we can see no error of law as to the refusal to adjourn and the arrangements made for the papers in the case. The arrangements made on that latter subject represent really no more than a practical arrangement forced upon the Employment Tribunal by the Applicant's failure earlier to prepare in due course. So that, even viewed as a separate matter, we see no arguable point of law emerging from the challenge to the decision on 21 September 1998.

We now, as it seems to us, have dealt, at length, with all Mr Stanislas' complaints. We have been able to detect no arguable point of law and so we dismiss the matters in front of us.