United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C SAMEK (of Counsel) Messrs Clarks Great Western House Station Road Reading RG1 1SX
For the Respondent	MR A BUTLER (Representative) Shuttari Paul & Co 33-35 South Road Southall Middlesex UB1 1SW


 


MR JUSTICE LINDSAY (PRESIDENT): Mrs Jangra is a respondent to a substantive appeal by Gate Gourmet (London) Ltd, who lost below. She appeals to me against being barred from defending the appeal by reason of her not having lodged a Respondent's Answer in time.

1. The chronological history of the matter can be summarised as follows.
2. On 3rd December 1998 Mrs Jangra lodged her IT1 for disability discrimination and claiming also unfair dismissal.
3. On 11th and 12th February 1999 there was a two-day hearing at London (South). On 12th March 1999 the decision was sent to the parties and it was that Mrs Jangra's claim for disability discrimination was well-founded, that her claim for unfair dismissal was well-founded, that there should be a remedies hearing fixed for 15th April 1999 and that directions were given as to the remedies evidence.
4. On 12th April 1999 Gate Gourmet put a date on their Notice of Appeal. They appealed both as to disability discrimination liability and also as to the case in unfair dismissal. It is said that that day, 12th April, the Notice of Appeal was sent also to Mrs Jangra's solicitors.
5. There was then a little irrelevant flurry in the sense that on 13th April 1999 the Employment Appeal Tribunal allowed an appeal against an order that the remedies hearing should proceed ahead of the appeal. Judge Byrt QC allowed that appeal. So for the time being it was only the liability side of the case that was going forward.
6. On 14th July 1999 Mrs Jangra got Legal Aid as respondent to the Gate Gourmet appeal.
7. On 19th July 1999 in the ordinary way Gate Gourmet's appeal came before the EAT by way of preliminary hearing and the EAT, presided over by Judge Levy QC, directed that the matter should go to full hearing. The order says, amongst other things:

"THE TRIBUNAL FURTHER ORDERS that a chronology accompanies the skeleton arguments to be exchanged and lodged not less than 14 days before the date fixed for the full hearing."

8. The preliminary hearing having thus ruled that there was to be a full hearing, the EAT as is its custom, wrote to the respondent or her solicitors and indicated that a Respondent's Answer was required and reminders were sent in that behalf but nothing was received from Mrs Jangra's solicitors.
9. On 5th August 1999, as it would seem, that date was applied by Mrs Jangra's solicitors to a Respondent's Answer. It indicates that the respondent, Mrs Jangra, intends to resist the appeal of Gate Gourmet and the space in which it says:

"The grounds on which the Respondent will rely are[the grounds relied upon by the Industrial Tribunal/Certification Officer for making the decision or order appealed from]

(here set out grounds which differ from those relied upon by the Industrial Tribunal or Certification Officer, as the case may be)"

had a blank after it so the intention, as it seemed, when that was filled in on 5th August, was merely that the respondent, Mrs Jangra, would rely simply on what had been adjudged below.

10. On 6th August a letter to the EAT was written by Mrs Jangra's solicitors apologising for delay in failing to reply to the Notice of Appeal within the stated timeframe and explaining that Legal Aid had been applied for and that there had been staff shortages and so on. That letter of 6th August was not received by Employment Appeal Tribunal, and that being so, the Employment Appeal Tribunal still did not have a Respondent's Answer before it.
11. On 19th August 1999 an unless order was made. It says:

"UPON THE FAILURE of the Respondent to file an Answer to the Notice of Appeal as requested in a letter dated the 29th day of July 1999 despite a reminder letter dated the 4th day of August 1999 being sent

IT IS ORDERED THAT UNLESS the Respondent files an Answer to the Appeal together with an application for an extension of time before 4.30pm on the 24th day of August 1999 the Respondent will be debarred from taking part in and defending the Appeal."

That led to telephone calls between the EAT and Mrs Jangra's solicitors and a copy of the alleged letter of 6th August 1999 and of its (alleged) enclosure was sent to the EAT on 20th August 1999. So that by 20th August the EAT had, amongst the papers in the case, a copy of the proposed Respondent's Answer, a request from Mrs Jangra's solicitors and an apology and some explanation of delay.

12. The EAT, as is its wont, then consulted the other side, namely Gate. Gate indicated that it would not agree to the matter going forward or, at any rate, there was nothing in Gate's answer which permitted the Registrar to overlook the delays that had so far occurred.
13. On 9th September 1999 the Registrar barred Mrs Jangra from defending the appeal. The order of that date says this:

"UPON THE APPLICATION of the Respondent contained in a letter dated the 6th day of August 1999, but received under cover of a letter dated the 20th day of August 1999, for an extension of time in which to file the Respondent's Answer to the Notice of Appeal.

AND UPON due consideration of the aforesaid application and a letter from the Appellant dated the 6th day of September 1999

IT IS ORDERED that the Application for an extension of time be refused and the Respondent is hereby debarred from defending the Appeal"

That, as I said, was 9th September 1999. That kind of order needs to be appealed against within five days, but it was not. The explanation given by Mr Butler, on Mrs Jangra's behalf or, perhaps more accurately, on behalf of Mrs Jangra's solicitors this morning, was that as the unless order of 19th August had strictly speaking been complied with, in that there had been an application for an extension of time lodged and an answer to the appeal received by the EAT before 24th August 1999, there must have been some mistake on the EAT's part and the first reaction therefore of Mrs Jangra's solicitors was that this was simply an administrative error that could be sorted out.

14. However, by 27th September 1999 Mrs Jangra's solicitors indicated a wish to appeal. It is that appeal which is before me.
15. In reply this morning, Mr Butler, recognising, in response to the argument of Mr Samek for Gate Gourmet, that it would be appropriate to ask for an extension of time to appeal the Registrar's order, made such an application.
16. Looking over the chronology one has to bear in mind that Mrs Jangra succeeded in her claims as to disability discrimination and unfair dismissal. Gate has appealed. The response to that appeal is undoubtedly late, as also is the application to extend time to appeal the Registrar's order.
17. Mr Samek makes a most compelling case. He says that no honest explanation has been given and contrasts what Mr Butler first said and what Mr Butler secondly says by way of explanation for earlier delay. He takes the point that so far as Mrs Jangra's solicitors rely on staff shortages and delays in obtaining Legal Aid, neither of those is in any event a good reason for delay. He points out that the leading case Abdelghafar v United Arab Emirates [1995] ICR 65 proceeds on the footing that if one has an honest explanation then that is a starting point but if one cannot even get to that starting point and then the discretion to extend is never reached. He makes the point that, that being so, prejudice is beside the point. He resists any procedural leniency in favour of Mrs Jangra.
18. I see a great deal of force in those arguments or at least in some of them. But to say that prejudice is beside the point seems to me to be going too far. Here, obviously, if I extend time Gate Gourmet suffers the prejudice that an appeal which might otherwise be wholly unopposed, indeed would seem to be necessarily unopposed except perhaps by the tribunal itself, will be opposed. But, beyond that inevitable degree of prejudice, if it can be described as prejudice, nothing is relied upon at all. It is not as if the Respondent's Answer introduces new or contentious grounds because it merely relies upon what was said below. Nor, in practical terms, has the delay which has been suffered led to any delay of any real kind in the hearing of the substantive appeal. It seems to me that beyond the inescapable prejudice that I have mentioned, no prejudice here is suffered at all.
19. Moreover, it seems to me there is a world of difference between extending or not extending time for a Notice of Appeal and the position relative to a Respondent's Answer. When what is in play is extension of time for a Notice of Appeal one is discussing whether there will be any further proceedings at all. Here there are bound to be further proceedings and the case really is chiefly as to whether at that further proceeding, namely the appeal at the EAT, the tribunal will have the assistance, which it will need, of both sides or of only the appellant. It seems to me that one can very readily take a quite different and more lenient line in relation to extension of time for a Respondent's Answer, especially when it raises nothing new, than one would to an out of time Notice of Appeal.
20. I regard this matter, overall, as a somewhat opportunistic attempt by Gate Gourmet to have an unopposed appeal. Given the seriousness of the matters in issue and the difficulties of the matters in issue, it seems to me that justice requires that both sides address the EAT when the matter comes before it by way of appeal.
21. I will extend time for the Respondent's Answer to 25th August 1999, which I apprehend is in good time after the EAT had in fact eventually received a Respondent's Answer. I also extend time for the appeal against the Registrar's order until 27th September 1999, which, again, I apprehend is a sufficient extension to make the matter able practically to go ahead. But I shall hear the parties on costs.

MR JUSTICE LINDSAY (PRESIDENT): As Mrs Jangra has succeed on her two applications, I have invited Mr Samek for Gate to address me on costs, under Rule 34, where it says:

"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.

(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."

Well here, as it seems to me, there has been unreasonable delay and unreasonable conduct in that, given that the preliminary hearing allowed the matter to go forward to a full hearing as early as 19th July 1999 and given that the EAT then invited an Answer and sent out reminder letters, there was unreasonable conduct and an unreasonable delay on the Respondent's side in not proceeding more speedily than they did. Even if the letter of 6th August 1999 had been sent and received at that date, even then there would have been a degree of delay. Of course there is also the delay, which I mentioned earlier, between the Registrar's barring order of 9th September 1999 and nothing having been done by way of appeal until 27th September 1999. Mrs Jangra's solicitors have a lot to answer for. Their explanations in their correspondence point to staff shortages and so on, which are plainly to be left at the door of the solicitors rather falling to the individual respondent.

I have no power here to make a wasted costs order or anything of that nature. The only order I can make, if any, is against or in favour of parties. It seems to me that the appropriate order would be that Mrs Jangra should pay a sum to Gate Gourmet, although I am bound to say I would expect it to be covered by her solicitors.

There is a difficulty in that she has some Legal Aid. The extent of that Legal Aid is not altogether clear. Whether it covers only the substantive appeal or whether it includes this particular flurry, I am not convinced. I have had the nature of the current grant of Legal Aid read to me and it does require further thought by the Legal Aid Board.

It seems to me that the appropriate order, leaving aside Legal Aid, would be that I should assess the part of the costs to be paid by Mrs Jangra to Gate Gourmet at £100. That sum is to be paid within 21 days, although I reiterate that I would expect it to be picked up by her solicitors rather than her because it is there that the blame truly lies. But if it transpires, on referring the matter to the Legal Aid Board, that the Legal Aid already granted has indeed covered today's applications, well then, in that case I shall have to add a rider that that sum shall not be required to be paid until the final hearing of the appeal or earlier further order. I will leave it in that form for the moment because of the doubt as to the existence or not of Legal Aid in this area. But, one way or another, if it had not been for Legal Aid, I would have simply ordered the £100 to be paid within 21 days.

[Mr Samek applies for a reconsideration of the estimation of costs.]

As I read from Rule 34, what I can assess is either the whole or such part as I see fit of the costs. I did not expect the whole of the Appellant's costs would have not exceeded £100. I will leave the figure at £100.