United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P GREEN (of Counsel) Instructed by Dr S Mireskandari Messrs Tehrani & Co Solicitors 21 Gloucester Place London W1H 3PB
For the Respondent	MR J TAYLER (of Counsel) Instructed by Mr T Shawdon Messrs Abrahams Dresden Solicitors 30 St John Lane London EC1M 4NB


 


JUDGE PETER CLARK

1. This is an Interlocutory Appeal against Orders made by a Chairman sitting at the London North Employment Tribunal on 3 and 4 October 2000, refusing the Respondent below, Medran Developments Ltd's application for a postponement of the substantive hearing of this complaint brought by the Applicant, Mr Howarth fixed for 4 – 6 October.
2. We are told that the hearing did not proceed today, due to lack of a Tribunal, and that again tomorrow there is no Tribunal available, although it may be that the hearing on 6 October will be effective, subject to resources.
3. The Applicant was dismissed by the Respondent in August 1999. On 19 November 1999 he lodged an Originating Application with the Employment Tribunal, complaining of unfair dismissal, breach of contract, that is wrongful dismissal and failure to pay expenses, and unauthorised deductions from his wages.
4. The claim was resisted. Solicitors then acting for the Respondent, Messrs Eversheds lodged a Notice of Appearance on 15 December 1999 which included a counter-claim alleging that the Applicant had fraudulently claimed repayment of expenses during his employment. The Applicant, then acting in person, made application for further and better Particulars of that allegation. Those Particulars were ordered by the Tribunal on 25 February, such Particulars to be given on or before 10 March.
5. An extension of time for providing those Particulars was granted on the Respondent's application to 24 March 2000, and before that date some Particulars were served. On 23 March the Tribunal notified the parties that the hearing of the complaint would take place on 5 May 2000. The Applicant successfully sought an adjournment of that hearing and the matter was relisted for 16 June. On that date, the case was adjourned due to the Respondent not being ready to proceed, the Respondent agreeing to pay the Applicant's costs thrown away.
6. At the hearing on 16 June the Chairman, Miss Lewzey, made a number of directions, not all of which have been complied with. She directed that the full hearing of this complaint should take place on 4 – 6 October, identified the issues in the case, gave permission to the Respondent to amend their Notice of Appearance by 7 July 2000, and also made provision for the service of Further and Better Particulars.
7. It seems that amended Grounds of Resistance was served on 21 July; an Order regarding Further and Better Particulars of those amended grounds was made on 30 August, compliance to take place following an extension of time on 22 September. Those Particulars have not been served by the Respondent and on 27 September new solicitors now acting for the Respondent made application to the Tribunal for a postponement of the hearing fixed for 4 – 6 October.
8. The thrust of the application was that it had only recently come to the Respondent's attention that the Applicant had been embezzling funds from the Respondent's company account to the extent so far of some £70,000. They then give examples relating to business expenses totalling about £549.
9. That application was opposed by solicitors acting for the Applicant by a fax letter dated 2 October 2000 which set out the history as I have related it. On the basis of those written representations, the Chairman refused the application.
10. Now there is an appeal by the Respondent against that refusal. We are reminded that our jurisdiction is limited to correcting errors of law, that applies equally to Interlocutory Orders as well as decisions of the Employment Tribunal .
11. Mr Green has submitted that in the light of the discoveries recently made by the Respondent, as to the extent of the alleged fraud on the part of the Applicant, it is inevitable that an adjournment will be required at the full hearing when the further documentation, which has now come to light, is put to the Applicant. In these circumstances, it is perverse for the Chairman to refuse the application, particularly in circumstances where the Respondent's difficulties arise due to what he terms as the Applicant's dishonesty.
12. The appeal is vigorously opposed by Mr Tayler on behalf of the Applicant. He submits that it is the Respondent who, having been granted a postponement on 16 June, because they were not ready, now seeks an adjournment in October for precisely the same reason. He submits that even if the three day hearing is truncated to one day, that will be a useful exercise because the first order of business will be for the Applicant to apply for the counter-claim to be struck out on the grounds that the Respondent has failed to comply with the order for delivery of further and better Particulars, they having been put on notice in accordance with Rule 4 (7) of the Employment Tribunal Rules of Procedures.
13. Having carefully considered the submissions on both sides we have no hesitation in accepting those advanced by Mr Tayler. We are quite unable to say that the Chairman's Order, bearing in mind the history of this matter as it appeared to him from the representations by the parties, was perverse: on the contrary, it seems to us that the Chairman was perfectly entitled to conclude that the matter ought to go ahead, bearing in mind the time that has elapsed since this Originating Application was first lodged in November 1999.
14. The fact that the first two days of the three day hearing have not taken place, due to lack of a Tribunal, is in our judgment irrelevant for our consideration, it not being a factor which was before the Chairman when he made the Orders appealed against. In these circumstances, this appeal is dismissed.
15. Following delivery of our judgment in this case, Mr Tayler applied on behalf of the Applicant below, Respondent to this appeal for the costs in the appeal. We have no doubt, and indeed we took steps to ensure that the Respondent was aware of this hearing, that he was entitled to attend today, being represented by solicitor and Counsel, in opposition to solicitor and Counsel here for the Appellant.
16. The costs of the Respondent in the appeal have been put forward at £555 plus VAT. We regard that as a reasonable sum. The question is whether or not under Rule 34 (1) of the Employment Appeal Tribunal Rules, it can be said that this was an unnecessary or improper appeal. Despite Mr Green's best efforts, we accept Mr Tayler's submission that this appeal disclosed no arguable error of law. It was a hopeless appeal in that limited sense, and that is the sense in which we must judge this application. Accordingly we find that it does fall within Rule 34 (1) and we shall order the Appellant to pay the Respondent's costs in the appeal, assessed in the sum of £555 plus VAT.