United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR S MIRESKANDARI (Solicitor) Messrs Tehrani & Co Solicitors 21 Gloucester Place London WC1V 7AP
For the Respondent	MR PAUL TROOP (of Counsel) Instructed By: North Lambeth Law Centre 14 Bowden Street London SE11 4DS


 


JUDGE PETER CLARK:

1. This is the second interlocutory appeal hearing in this case. On 15 June 2001 a differently constituted division on which I sat dismissed the respondent's appeal against (1) the London Central tribunal's third refusal to postpone the substantive hearing of this case fixed for 25-27 July 2001 and (2) an order dated 1 June that the respondent provide a list of documents on which they intend to rely by 8 June, later extended to 20 June.
2. I refer to the judgment which I gave on that occasion for the background and pick up the chronology at 21 June 2001 when a Chairman, by letter of that date, instructed the parties that they should exchange list of documents on 25 June and that witness statements should be exchanged on 2 July. The parties agreed to exchange copy documents on 3 July.
3. On 28 June a Chairman wrote a rule 4(7) letter to the respondent's solicitors, warning that the Notice of Appearance may be struck out in whole or in part for non-compliance with the disclosure order made on 1 June.
4. On 2 July the respondent's solicitors faxed copies of their clients' witness statements to the applicant's representative, North Lambeth Law Centre (NLLC). On the same day NLLC responded by fax, expressing surprise and stating that once they had received the respondent's copy documents they would forward their clients witness statements on or by 9 July.
5. That communication prompted the respondent's solicitors to fax the tribunal on 3 July, complaining that NLLC had breached the order of 25 June by not exchanging witness statements on 2 July. They asked for an order debarring the applicant from introducing any evidence not filed and served by 2 July, that is to say, effectively preventing her from calling any oral evidence in support of her claim.
6. NLLC responded on the same day, pointing out that the tribunal order of 21 June was couched in terms as to what the parties should do so far as exchange of lists and witness statements was concerned and that no agreement had been reached for mutual exchange of witness statements. They further faxed the tribunal seeking, if necessary, an extension of time for exchanging witness statements to 9 July. That direction was given on 6 July.
7. Meanwhile, on 5 July the tribunal wrote to the respondent's solicitors indicating that there would be no strike out at this stage.
8. On 6 July the respondent's solicitors notified the tribunal that they would be appealing the order declining to strike out the applicant's claim.
9. On 9 July the respondent's solicitors made a further strike out application, this time on the basis that the applicant had failed to produced her documents by that date.
10. Further correspondence ensued and on 13 July an unnamed Chairman took stock, expressing the following views in a letter of that date:

(1) He or she had decided not to strike out the Notice of Appearance because it was not clear that the respondent had failed to comply with the tribunal's orders.

(2) It was too late to entertain an application to strike out the Originating Application because there was insufficient time before the hearing to give the applicant a proper opportunity to respond.

(3) He or she urged the parties to prepare for the hearing amicably. No further strike out applications would be considered on paper.

11. On 16 July and following further, less than amicable letters from the parties, on 18 July the Chairman directed that all applications should be dealt with at the beginning of the hearing before the tribunal tomorrow.
12. In this appeal, brought by the respondent below, the following points are taken:

(1) The tribunal Chairman failed to adjudicate on the respondent's application to debar the applicant from calling evidence for non-compliance with the 21 June direction for exchange of witness statements on 2 July.

(2) The tribunal had no jurisdiction to revisit its decision made on 21 June so as to extend time for compliance.

(3) Alternatively the tribunal ought to have struck out the Originating Application for non-compliance with the further order extending time for exchange until 9 July.

(4) The respondent cannot properly deal with the matter tomorrow without knowing the nature of the applicant's case in resisting the respondent's strike out applications.

13. As to those submissions:

(1) We are not satisfied that the Chairman's letter of 21 June contained a mandatory direction. The words "instruct" and "should" militate against such a construction.

(2) Even if it was a mandatory direction, it does not fall within the provisions of rule 4, allowing for an order to be made following the rule 4(7) procedure.

(3) At most it was a direction under rule 16 which did not carry a penal sanction.

(4) Dr Mireskandari has sought to invoke rule 13(2)(e), scandalous, frivolous or vexatious conduct of the proceedings. If that power is appropriate, then it is subject to the provisions of rule 13(3) and the Chairman was entitled, in our judgment, to rule that it would be inappropriate to deal with the respondent's applications to debar or strike out the applicant, either on paper or by an interlocutory hearing, in advance of the substantive hearing fixed for 25 July. To defer any ruling until that date was a proper exercise of the power of postponement contained in rule 13(7).

(5) It is clear from rule 15(1) that it was open to the Chairman to extend time for compliance with the 21 June direction, assuming it to be a direction, on application made by the applicant after expiry of the time already appointed for exchange. We emphasise that it was, at most, an interlocutory order and not a decision susceptible of review within the definition contained in regulation 2(2) of the 1993 Regulations. An Employment Tribunal has power to revisit and alter an interlocutory order. See Nikitas v Solihull Metropolitan Borough Council [1986] ICR 291.

(6) The respondent has suffered no prejudice if, as is asserted in a witness statement of Mr Davies, the applicant's solicitor, put before us today, that the witness statements disclosed by the respondent on 2 July were not read by the applicant or her advisers until 9 July. Further, the respondent is now aware of the nature of the applicant's case for the purposes of the interlocutory hearing fixed for tomorrow morning. In short, we are unable to detect any error of law in the Chairman's orders, either as a matter of power or discretion provided for in the Rules of Procedure.

14. It follows, applying the principles arising in our jurisdiction more particularly set out at paragraph 20 of my earlier judgment given in this case on 15 June, that there are no grounds for interfering with the course taken below since 20 June and accordingly this appeal is dismissed.
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COSTS ORDER

15. Following our judgment in this appeal Mr Troop applies on behalf of the applicant for the costs of appeal on the grounds that these proceedings were unnecessary within the meaning of rule 34(1) of the EAT Rules. We accept that submission.
16. Dr Mireskandari has sought to persuade us that it was necessary to come to the EAT in order to understand the nature of the applicant's case. We cannot accept that. All that has emerged in these proceedings, in additional to documentation common to both parties, is a witness statement from Mr Davies, the applicant's solicitor, which sets out effectively the case which he had put on paper in correspondence, particularly in his letter to the respondent's solicitors dated 17 July.
17. This appeal was unnecessary in the sense that it was hopeless and disclosed no arguable point of law.
18. Turning then to the appropriate costs order, it is not urged on us that the respondent is impecunious. We have seen an itemised statement of costs prepared on behalf of the applicant and dealing with the time spent on this appeal only by Mr Davies and Mr Troop. Having heard submissions on the detail we are quite satisfied that those items were properly incurred in connection with the appeal. The hourly rate is reasonable in respect of both the solicitor and Mr Troop and accordingly, the Law Centre not being subject to VAT, we shall order the respondent to pay costs in the total sum of £1,260 in this appeal (852/01) within 14 days of the promulgation of this order.