United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. I have before me what should have been an ex parte meeting for directions in the case of Mr G. Nicholas against the Directors of Plummers Restaurant Ltd. The party that was expected to attend was Mr G. Nicholas, the Applicant. As the matter was ex parte, of course, the Directors of Plummers Restaurant Ltd were not expected to attend in any case. But, as it has turned out, Mr Nicholas has not attended. It is now 11 minutes past 3 in the afternoon and nothing has been heard from him today except a letter of 12 May 2000 addressed to me and to the Registrar and referring to an application made, in writing yesterday, for an adjournment. The request in writing yesterday made for an adjournment was declined, although it was indicated to Mr Nicholas that he could renew his application for an adjournment today. He gives no conventional ground such as illness or inability to attend for his application for an adjournment and he says:

"Moreover, I insist that today, 12 May, for this case to be transferred to an open High Court with a jury."

That is quite impossible.

2. The IT1 of form of complaint against Mr Nicholas is addressed to individuals but in the capacity of Directors of Plummers Restaurant Ltd. In case it is relevant I mention that the company is now in liquidation.
3. I need to refer back to a hearing of this matter before me inter partes on 14 January 2000. What was then in issue was whether some relatively small parts of the Notice of Appeal on Mr Nicholas' part should be struck out. They were parts in which he alleged bias on the part of the Tribunal Chairman below, Mr Ingham. The Registrar here had ruled that those passages should be struck out. That had been done by way of an "unless" order which had not been complied with.
4. In the course of quite a long judgment on 14 January I set out the chronology of the matter and I dismissed the appeal against the striking out of the parts which the Registrar had struck out. Indeed, in some minor respects I added to the passages which were required to be struck out from the Notice of Appeal. But then, I turned a little more generally to the form of the so-called Notice of Appeal. I said, in my paragraph 15:

"Under Practice Direction 2(3) it says:

'The Notice of Appeal must clearly identify the point of law which forms the ground of appeal from the decision of the Industrial Tribunal to the EAT. It may also state the Order which the Appellant will ask the EAT to make at the hearing.'

It cannot be over-emphasised that the Notice of Appeal must identify points of law to form the grounds of appeal. I have looked at the present Notice of Appeal, of course, chiefly to see how far it contains references to instances of bias and improper conduct alleged to have occurred on the part of Mr Ingham, but I have inevitably formed views whilst looking at it. As I mentioned earlier; a remarkable feature is that the Notice of Appeal is some three times longer than the decision which is under appeal. It seems to me at the moment to be a loose ramble through the evidence given or evidence which seems to have been given or is alleged to have been given. It is not a Notice of Appeal that simply identifies the points of law sought to be relied upon. What I am going to do is to direct that there should be a directions hearing, not earlier than 28 days after today, at which only Mr Nicholas need attend, and I shall invite Mr Nicholas in the meantime to give very careful consideration to what are the points of law which he wishes to raise at the hearing of his appeal. It is quite unfair upon the respondents and the EAT to require them to find their way through the 32 plus pages of the present Notice of Appeal trying to see where are any points of law identified. Practice Direction 2(3) emphasises that the Notice of Appeal must identify the points of law. If at this return date, not less than 28 days hence, Mr Nicholas wishes to invite me to allow him to reframe his Notice of Appeal in accordance with some new form of words which he shall have devised and which identify points of law and do no more than that, I shall welcome that and will try an give him such assistance as I can in concentrating the matter into points of law. But if, at that restored hearing, the matter is still a jumble of evidence as well as of possible points of law that might somewhere be found like gold amongst dross, well then, the risk will be, if that is the case, that I will adjourn the matter for an inter partes hearing at which both sides can address me and at which what will be issue is whether the whole Notice of Appeal rather than just the small bits that I have been dealing with today, are appropriate to be struck out."

And a little later, I said:

"There will be, not less than 28 days hence, a directions hearing which Mr Nicholas alone need attend. He should concentrate on reformulating his Notice of Appeal in the interval. I will be very willing to entertain an application to amend his Notice of Appeal at that hearing, but if, by then, he has failed to comply with Practice Direction 2(3), well then, the risk will be that at this next hearing I shall simply adjourn the matter for a hearing at which both sides address me and on which occasion what will be in jeopardy, so far as concerns Mr Nicholas, will be the striking out of the whole of the Notice of Appeal."

5. So far as I can see Mr Nicholas has made no attempt to reformulate his Notice of Appeal. All that has been received from him are a number of letters and a six-page statement from a witness and, more recently, the request for an adjournment of 11 May 2000 and the letter of today's date, 12 May 2000.
6. The Notice of Appeal remains a quite hopeless jumble, a form which, were it allowed to go forward, would be unfair to the Respondents and to the Employment Appeal Tribunal. The need to reform it has been pointed out, as I have already mentioned, and time has been given for its amendment and nothing has been done.
7. Accordingly, I shall now give a direction under EAT Rule 25 and it is to be noted, on Mr Nicholas' part in particular, that there is power in relation to a person who fails to comply with a direction given under Rule 25 to debar him or her altogether from further part in the proceedings.
8. So what I shall do is this. I shall adjourn this case for an inter partes hearing for as early a date as can be fixed but not earlier than 1^st June 2000. Mr Nicholas is to use all reasonable speed to delete from his Notice of Appeal, after its page 2, everything except grounds of appeal consisting of allegations of error of law strictly-so-called and he is to re-serve the Respondents and the EAT with a Notice of Appeal so amended not later than 23rd May 2000. That gives him an interval in which to reform his Notice of Appeal, even though he has already been clearly told by my earlier judgment that that was what needed to be done. He must recognise that if, when the matter returns, it can be shown that even by that date 23rd May he has failed to comply with the direction I have given as to the reformulation of the Notice of Appeal, he risks being debarred from taking further part in the proceedings altogether. It will be open to me, if that is the case at the inter partes return hearing, to dismiss the appeal. He must be aware of that risk. I hope it concentrates his mind to an adequate reformulation of the Notice of Appeal.
9. The Respondents may or may not attend the inter partes hearing. That is up to them. They are, of course, entitled to attend it as it will be an inter partes hearing, but I will be willing to accept from them submissions in writing if they choose not to attend. Any such submissions should be in good time before the return date and should, of course, be supplied also in good time to Mr Nicholas. It will be open to them, if Mr Nicholas has not complied with the direction that I have given, to ask me to debar him under the Rules and dismiss the appeal.
10. If any party wishes at the return date to address me on the subject of costs, that too is a subject that can be dealt with in writing but, again, if the Respondents wish me to make an order for costs against Mr Nicholas in their favour then, if they do rely on writing, that writing must be supplied in good time not only for the EAT but to Mr Nicholas. I do not adjourn the case, despite Mr Nicholas' request of 12 May, which I have considered. This is a case which has already been more than sufficiently delayed. It needs to be got on with and I cannot overemphasise the risk that Mr Nicholas runs if he does not adequately reform his Notice of Appeal in the time that I have given, in order that it contains matters which properly can be advanced on appeal, rather than remaining in the present hopeless jumble which it would be unfair on anyone, lawyer or lay member, to have to sift his way through. With that direction given, I merely direct the inter partes hearing to be fixed in the manner I have indicated.
11. Having said that, I have just been handed another number of fax pages, 7 pages odd, the last page of which has an arrow saying "To continue" and they are from Mr Nicholas. They purport to be dated 9 May and yet the fax heading indicates that they were sent on 12 May at 3.00 pm, which was about 24 minutes ago. I will pause to look through these further pages. [The President read the pages]. Having read them, I see that they cannot conceivably be taken to be a form of amendment to the earlier Notice of Appeal to comply with the direction I gave in January 2000. Although Mr Nicholas does assert that he has a point of law that the judgment below was perverse, that is a matter which he can take into account when reformulating his present Notice of Appeal in the interval I have given for that purpose. The added pages that have just arrived do not require me to amend what I earlier said and I leave the direction as I earlier gave it.