United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS P M DUFFAY (Consultant) Employment Law Advice Centre Ltd 22 St Edmunds Road Northampton NN1 5EH


 


MR JUSTICE NELSON

1. This is a preliminary hearing in an appeal by Dr Lee seeking to overturn the decision of the Employment Tribunal made on 19 December 2000, deciding that the Originating Application be struck out on the ground that the manner in which the proceedings had been conducted by or on behalf of the Applicant had been frivolous or vexatious.
2. There were two essential bases for the decision made on that date by the Tribunal. Firstly, that the conduct of the proceedings had been such that orders had not been properly complied with, within time or at all, and that the information that had been served was obfuscatory rather than illuminating. Secondly, that the conduct was frivolous or vexatious in that neither the Applicant nor her representative attended for a hearing on 13 November 2000 for a further directions hearing. That that failure to attend was, in the circumstances of the case and in particular the Chairman's finding, that the reasons for the non-attendance were, in his words, "hard to accept."
3. He concluded therefore that the failure to attend on that date and conduct the matter any further at the adjourned directions hearing was frivolous and vexatious. The essence of what he said, both in his decision and in his comments upon the affidavit served on behalf of the Applicant, were that it appeared to him to be a question of a conscious decision being taken by the Applicant's representative not to attend the adjourned directions hearing on 13 November 2000. Such a finding is a direct finding of a refusal to obey the order of the Tribunal and hence can properly be described as frivolous or vexatious.
4. We have considered this matter and come to the conclusion that the appeal should be allowed to go to a full hearing on one ground and that is the ground of the non-attendance being conscious and deliberate. We have had put before us today contemporary faxes by the representative of the Applicant, a Mrs Duffay.
5. Mrs Duffay, who has been conducting the matter, or her organisation has throughout on behalf of the Applicant, has put forward letters indicating that the reason why she did not attend on 13 November was not through any conscious decision not to do so because of the fact that there was resentment or disapproval of the Chairman's decision, but through a simple clerical error; the date being wrongly re-entered on the computer.
6. The matter, it seems to us, is arguable and should therefore go before the Tribunal for a full hearing and we so order. There is no other basis upon which we allow the case to go to a full hearing by the Employment Appeal Tribunal. We also note that the documents that have been served, in the form in particular of the affidavit and the skeleton argument, are discursive and muddled and do not assist the court in determining what issues are to be decided.
7. We therefore order that any further documentation served in relation to this appeal be concise and to the point and that the skeleton argument be redrawn so that it addresses the issues which are relevant for the full hearing by the Employment Appeal Tribunal. As I have indicated, those set out in the skeleton argument at present before the court do not assist in helping the court come to any decision.