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
For the First Respondents	MR KEITH MORTON (of Counsel) Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Second Respondents	MS INGRID SIMLER (of Counsel) Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us as a Full Hearing the appeal of Dr R A Lee in the matter Lee v Police Information Technology Organisation & Others. In fact there are nine Respondents. Dr Lee appeals against her case having been struck out on account of frivolous or vexatious conduct on her or her adviser's part. Today, Dr Lee appears by Mrs P M Duffay, a consultant. Respondents One, Two, Five, Six, Seven and Eight appear by Mr Morton and Three, Four and Nine by Ms Simler. I will not take up time reading out all the names of the various parties.
2. On 7 June 2000 Dr Lee presented an IT1 for sex discrimination and victimisation falling within the Sex Discrimination Act. Even then, I think, it had nine Respondents, the first of which was the Police Information Technology Organisation. She identified the Employment Law Advice Centre (ELAC) as her representative. That firm transpires to be a very small operation composed of Mrs Duffay and her husband and a little clerical support. As I understand it, neither Mrs Duffay nor her husband have professional legal qualifications, but they carry on practice as advisers in the employment law field under that name. The IT1 was accompanied by some fairly long documents, particulars of claim, particulars of sex discrimination and victimisation (they were annexed to the IT1) but, for all their length and for all that they were drawn up, presumably, either by ELAC or with its assistance, they are very short on details of particular events and particular dates in a chronological sequence.
3. Perhaps it was that that led the Chairman to arrange an interlocutory hearing for
   15 September 2000. The hearing was preceded by further lengthy documents from the Applicant 13 September and 15 September itself. Mr R Peters, the Chairman, had the unenviable task of trying to understand the claims that were being made. At a later stage he said this:

"I was the Chairman allocated to conduct the interlocutory hearing on 15^th September. Prior to the hearing I read the Originating Application and also endeavoured to read through the various documents sent by facsimile transmission. Having done that I did not understand what complaints were being made by the Applicant, in particular what were the alleged acts of sex discrimination and what were the alleged acts of victimisation. It appeared to me that the only complaints were as to unlawful discrimination by way of victimisation but the precise acts of discrimination were not specified and could only be ascertained by conjecture. There was no indication as to the involvement of the Respondents other than the Applicant's employer."

That interlocutory hearing did take place on 15 September. Mrs Duffay of ELAC arrived late. The Chairman later said this:

"At the hearing on 15^th September the Applicant and her representative, Mrs Duffay, were present but the interlocutory hearing did not commence until 3.00pm due to the late arrival of the Applicant's representative. Ms Lightman, solicitor, appeared on behalf of the First, Second, Fifth, Sixth, Seventh and Eighth Respondents, and Ms I Simler, counsel, appeared on behalf of the Third, Fourth and Ninth Respondents. Having ascertained that the Respondent's representatives were as unclear as myself as to the nature of the complaints, I decided that the only way to proceed in view of the time available, would be to order the Applicant to prepare a witness statement to comprise her evidence in chief in which she would identify those complaints. I stated that I would then hold a further directions hearing on Monday 13^th November 2000 at 10.00am to go through the witness statement in detail, establish the issues and fix a hearing date."

So, there was an oral indication on 15 September that the next meeting would be on Monday
13 November. An Order specifying the date of 13 November was drawn up and sent out. The Tribunal later said:

"… I made a specific order as to the format and contents of the Applicant's witness statement. In particular, the witness statement should identify the act or acts of alleged unlawful discrimination and/or victimisation, and identify in respect of each Respondent which act or acts of alleged discrimination was/were alleged against each such Respondent."

The Chairman added later:

"Finally, the order confirms that a further directions hearing was fixed [to] take place on Monday 13^th November 2000 commencing at 10.00am."

A review of that Order was sought by Dr Lee and was refused, but, quite manifestly, that there was a hearing fixed for 13 November had come very plainly to ELAC's and to Mrs Duffay's notice.

4. On 13 October the Employment Tribunal received some one hundred and five pages from the Applicant, by way of ELAC, intended to be a witness statement complying with the earlier Order. An appeal to the Employment Appeal Tribunal was dismissed on 30 October 2000. Then came the hearing on 13 November which, as I say, had been thoroughly flagged up in information given to ELAC. However, no one attended on the Applicant's side. No one came from ELAC; Mrs Duffay was not there and the Applicant herself was not there. There was no immediate explanation of why that was so, although there had been a fax sent early that morning to the Employment Tribunal. The Chairman dealing with this non-attendance later said:

"I caused a telephone call to be made at approximately 10.15am to the Applicant's representative office to enquire why there was no attendance; Mrs Duffay, the Applicant's representative, was not at the office as she was at Tribunal offices in Bedford. It seemed that no one else was due to attend the interlocutory hearing and no alternative arrangements were proposed by the Applicant's representative's office for representation or attendance on that day."

A little later the Chairman said this:

"On my instructions on the 13^th November a letter was sent with that order to the Applicant's representative with copies to both of the Respondent's representatives. A copy of that letter is also attached to this order. The letter gave warning that I was considering striking out the Originating Application on the grounds either that the Originating Application or the manner of the conduct of the proceedings was scandalous, frivolous or vexatious.

On 17^th November the Tribunal received from the Applicant's representative by facsimile transmission a letter dated 14^th November 2000 in which the Applicant's representative explained that the reason for non-attendance was that the date for the interlocutory hearing had been incorrectly entered in diary as the 14^th November 2000. It also asked for the Tribunal not to strike out the proceedings."

5. On 14 November, as that paragraph refers to, Mrs Duffay, as joint managing director of ELAC, wrote to the Employment Tribunal to apologise for the failure to attend on
   13 November. She made a number of statements in the course of a letter of explanation; her letter began:

"We sincerely apologise for failing to attend the hearing and do not seek to excuse that a horrendous error was made. We assure the Tribunal that no disrespect was intended. It was a genuine error, which we explain below."

A little later she says:

"We assure the Chairman no disrespect was intended. We wished only to co-operate without any prejudice to our client: not limited to the Order, where the Chairman's intentions were clarified by the EAT, but an overall observation. We are devastated by the error which led to our non-attendance."

The letter of 14 November concluded:

"We take the Tribunal process seriously and have great respect for it and any disrespect perceived by the Chairman was unintentional and all actions genuinely motivated with a common objective, in consideration of which the Tribunals (including Croydon Tribunal) have a history of giving an Applicant an opportunity to put right an error such as a failure to attend (with and without penalty of costs) and we ask that this be extended to the Applicant in pursuit of natural justice."

6. Having received that letter, Mr Peters, the Chairman, sent a copy of it off to the other parties for their comment and received submissions from the other parties. The Chairman then dealt with the matter on paper, privately, without a further hearing. He says a number of things in his decision. He says:

"I have read the Applicant's representative's letter of 14^th November 2000 in response to the striking out warning. I find it hard to accept the reasons for non-attendance on 13 November for two reasons.:

(i) the Applicant's representative was present on the 15^th September 2000 when the date for the further interlocutory hearing was fixed and the Applicant's representative had that date confirmed in the order. Two subsequent letters from the Tribunal reminded the Applicant's representative of the actual date of the interlocutory hearing, the last one being on 27^th October just over two weeks prior to the second interlocutory hearing.

(ii) the contents of the letter do not explain the non-attendance of the Applicant or indeed, why the Applicant did not remind her representative of the hearing on the 13^th November. The Applicant was present on 15^th September when the date of the 13^th November was fixed."

A little later the Chairman says:

"The overwhelming impression is a lack of co-operation with the Tribunal."

In the Chairman's paragraphs 42 and 43 he says:

"I accept the Applicant's representatives submissions that the Originating Application itself is not frivolous of vexatious. The Originating Application does not set out the facts, including dates in support of the identified complaints but that is a common consequence of the informal manner in which Employment Tribunal proceedings may be commenced.

However in the light of all of the above I am quite satisfied that the manner in which the proceedings have been conducted by and on behalf of the Applicant has been frivolous or vexatious and in coming to that view I have taken account of public policy consideration as indicated above."

In paragraph 47 he adds:

"I am of the view that the stage has been reached where the prejudice to the Respondents, to the Tribunal, and the parties in other cases is such that the whole of the Originating Application should be struck out."

7. It is to be noted that Mrs Duffay was not called to give evidence, nor was she cross-examined in relation to her reasons for not attending on 13 November. The Tribunal of fact, that is to say Mr Peters, does not say that her version of the events has to be disbelieved, or was disbelieved, or was untrue, just that it was hard to accept. He does not in terms say that it was not accepted. The pleadings themselves (to call them that), and the nature of the claim, were not held to be frivolous or vexatious. Nor even is it said by the Chairman that, as he saw it, they were doomed to fail or that they were in any way abusive of process. The conduct of the Applicant or her representative was held to be frivolous or vexatious without, in fact, which it was of those two as was identified as the real culprit.
8. There is no event or fact, as it would seem to us, described by the Chairman which could have led Dr Lee herself to be held to have been frivolous of vexatious against the background of the matter being conducted largely by, or wholly by, a representative. It would seem that it was the conduct of the representative therefore that gave rise to the offending conduct, but Mrs Duffay's conduct was not held to be wilful or to be to be contumelious. There is no suggestion of a deliberate abuse of process; nothing by way of behaviour intended to be contemptuous of the court.
9. On 19 December the Chairman sent his decision to the parties. It was:

"By virtue of the authority of Rule 13(2)(e) of the Employment Tribunals Rules of Procedure 1993, I hereby order that the Originating Application herein be struck out on the ground that the manner in which the proceedings have been conducted by or on behalf of the Applicant has been, frivolous or vexatious.

The order for costs contained in paragraph 2 of the Order dated 13 November 2000 is revoked."

That second paragraph is a reference to the fact that on 13 November, £540 of costs were awarded against the Applicant and in favour of the Respondents who were represented at that hearing. As to costs, in his decision sent to the parties, the Chairman said this:

"At the hearing on 13^th November I ordered costs to be paid by the Applicant to the Respondents. Those costs totalling £540. The order for costs was conditional as it was made in the absence of the Applicant or her representative.

On reviewing that Order I consider that it would be unjust both to strike out the Originating Applicant and leave the order for costs and in those circumstances I revoke the order for costs awarded to the Respondents."

That is the position down to the end of 19 December 2000 when the Chairman's decision on the strike out was sent to the parties.

10. Evidence has since been sworn by Mrs Duffay. It makes a number of points. I am not at all sure how important or right it is to go into evidence that was not in fact in front of the Tribunal itself but I do think there would no harm in referring to paragraph 1 of her affidavit that says:

"The Employment Law Advice Centre Limited is a small husband and wife team consultancy company, established 12½ years, employing one full time and one part time clerk. Our core business is case management and representation for Applicants at the Employment Tribunals."

Mrs Duffay finds it difficult to say anything in less than too many pages and she has certainly a taste for the irrelevant. I do not think it is right to go into that affidavit any further than that short paragraph, nor, indeed, at any great length to the affidavit that Ms Lightman, on the Treasury Solicitor's side, has gone in her affirmation. Again, that is a document that, of course, was not before Mr Peters on 13 November or 19 December. I do not think there is very much contest about Ms Lightman's version of what happened on 13 November. What she says is this:

"After a while (I cannot remember how long but would estimate between 15 and 30 minutes) the Chairman asked us to go before him. He said that there was no attendance on behalf of the Applicant. He explained that he had planned to set aside the whole day for the hearing and go through the Applicant's witness statement paragraph by paragraph and produce a workable document.

He asked the clerk if there had been any communication from the Applicant or her representative to explain where they were. The clerk said that there had been nothing, so the Chairman asked the clerk to go and telephone the Applicant's representative's office to find out the reason for the delay.

The clerk returned to say that s/he had spoken to someone at the Applicant's representative's office. Mrs. Duffay, the Applicant's representative, was out of the office at a hearing at a different Tribunal and would not be attending the hearing at London South. The Chairman asked the clerk to ascertain whether either the Applicant or her representative would be able to attend later in the day if he adjourned the matter until after lunch. The clerk went away and came back with the message that neither the Applicant nor her representative would be attending the hearing that day."

There might be some contest about that if it was suggesting that that represented two separate telephone calls as opposed to one but otherwise, generally, the drift of the events on the day is very much not in contest. Later on, Ms Lightman, speaking of the Applicant's personal position, says:

"Whilst I accept that the Applicant's representative might have been in difficulties if she was already involved at a hearing at another Tribunal, no explanation has been provided as to why one of the other people in her office could not attend. As far as the Applicant is concerned she was at that time suspended and at home. It was usual for her to attend hearings with her representative. There seems to be no reason why she could not attend nor was any provided."

There is no allegation in Ms Lightman's affirmation that Mrs Duffay has been lying about the reason for non-attendance or that her conduct was deliberate abuse of process or in any other way contumelious.

11. That is the background to the case before us. It is not right to draw very close parallels between the position in the High Court and the Rules (either pre Woolf or post Woolf) in the High Court and the Tribunal Rules because obviously they are different systems. Even so, at a rather broad level, what is just in one is likely to be just in another. Equally, what is unjust in one is likely to be unjust in another. It has to be said that even before the Woolf reforms in the High Court it was relatively unusual for a case to be struck out for conduct where there was nothing contumelious about the conduct concerned and where there had been no 'unless order'. It also needs to be born in mind that the Employment Tribunal does not have an inherent jurisdiction in the way that the High Court does.
12. One important consideration seems not to have loomed at all in the Chairman's thinking in his decision of 19 December. That is – how far the failure of Mrs Duffay to attend on
    13 November materially prejudiced a fair trial of the case, it being remembered that the Chairman did not find the pleadings themselves to be frivolous or vexatious. He did not say, as we have mentioned, that Mrs Duffay's version was not to be believed but merely that it was hard to accept. He did not even say that it was not accepted. As it would seem to us, what he had before him was a case that could not be regarded as one of wilful default or contumelious error on the part of the adviser but simply total incompetence or negligence on the part of ELAC.
13. The Chairman, as it seems to us, never addressed the question, which we would regard as an important one in that context, namely, as we have mentioned, was a fair trial truly prejudiced by the non-attendance. It was, as it seems to us, an error of law not to address that crucial factor. We are not saying for a moment that it would necessarily have been determinative. Ms Simler has quoted to us Arrow Nominees Inc & ANR v Blackledge and Others in the Court of Appeal on 22 June 2000 where Lord Justice Ward speaks of the risk of a fair trial not being possible as being a factor that may often be determinative but not on its own necessarily a sufficient consideration. As it seems to us, the Chairman in our case never addressed that crucial issue at all.
14. On that basis we regard the decision as being in error of law. We allow the appeal and set aside the order of 19 December. That restores the order for costs of 13 November. We leave that order for costs to stand. Indeed, to do her justice, Mrs Duffay did not oppose that possible consequence.
15. We cannot leave the case without some comment on its past and its future. Both Dr Lee and Mrs Duffay ought to give very serious consideration to whether, in the light of the history of this complicated case, it truly will be in Dr Lee's best interests to continue to be represented by a firm that only has the intellectual and other resources of ELAC, an inescapably small firm, dealing with what Lord Johnson in the Employment Appeal Tribunal described as a complex or complicated case. Both Dr Lee and Mrs Duffay ought to give some thought as to whether the time is not right for some outside professional guidance to be available to one or both of them, but that is a matter for them. Simply looking to the case before us, as we said, we allow the appeal and set aside the order of 19 December and restore the order for costs that was earlier made.