United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR A SERAY-WURIE (Representative) Instructed by: Hackney African Organisation Legal & Welfare Services Africana Hall 22 Ashwin Street London E8 3DL
For the Respondent	MISS C MacLAREN (of Counsel) Instructed by: London Borough of Hackney Legal Services Department 183-187 Stoke Newington High Street London N16 0LN


 


JUDGE PETER CLARK

1. On 25 September 1998 the Appellant, Ms Kyamanywa, then employed by the Respondent, Hackney, presented an Originating Application to the London (North), now (Central), Employment Tribunal complaining of race and/or sex discrimination. In that document she did not name any representative acting on her behalf. The claim was resisted.
2. Thereafter a firm of solicitors, Balogun Kirvan (BK), through their Mr John Hatrick, assisted the Appellant in the conduct of her case.
3. On 2 June 2000 she wrote to the Tribunal urging that the case be listed for hearing as soon as possible. She, on the face of that letter, copied it to BK.
4. On 13 June the Tribunal wrote to BK, which was regarded as acting for the Appellant in these proceedings, with copies to the Appellant herself and Hackney Legal Services, acknowledging receipt of her letter dated 2 June and informing the parties that a Chairman had directed that the case be listed for a full hearing over 3 days.
5. On 17 August 2000 a Notice of Hearing was sent to BK and to Hackney Legal Services. The case was listed for hearing on 6-8 September.
6. On 6 September the case came on for hearing before an Employment Tribunal sitting at Stratford, chaired by Mr S M Duncan. Hackney attended, represented by Counsel; the Appellant did not appear and was not represented. We see from that Tribunal's decision with Extended Reasons dated 22 September 2000 (the first decision) that enquiries were made of first, BK and then the Appellant, by telephone. BK said they were no longer acting; the Appellant could not be contacted.
7. In these circumstances the Employment Tribunal proceeded to consider the Originating Application under Rule 9(3) of the 1993 Rules and dismissed it.
8. That decision having been promulgated an application for review was submitted by the Appellant's new representative, Dr Seray-Wurie. In that application it was contended that on 14 June BK had informed the Tribunal that the Appellant had not instructed them and that they would be grateful if the Tribunal could forward a copy of all correspondence to the Appellant directly at her home address. It was further said that the Appellant had received no notification of the 6-8 September hearing dates. In these circumstances a review was sought, presumably under Rule 11(1)(b) of the 1993 Rules of Procedure then in force.
9. The review application was heard by Mr Duncan's Tribunal on 21 March 2001. It was dismissed by a decision with Extended Reasons dated 29 March 2001 (the review decision).
10. Evidence was given at the review hearing by the Appellant only. Mr Hatrick was not called. The critical findings made by the Tribunal are set out at paragraph 6 of their reasons thus:

6 "Both parties accept that a notice of hearing sent to solicitors on the record amounts to a notification to the solicitors' client, even though that client is not so informed. The Tribunal file shows that such a notice properly addressed was sent to Balogun Kirvan and the Respondents. The Respondents, through their Counsel Mr Heath, indicated that they had duly received the notice. The notice must be deemed to be properly served when sent by post unless we are satisfied by evidence that it was not in fact received. All we really have today is the letter from Balogun Kirvan dated 18 September 2000. We do not have any evidence from Mr Hatrick who wrote that letter and we are therefore satisfied on the information before us that the notice of hearing was not in fact received. We also find it odd that the copy of the earlier letter allegedly sent to the Tribunal offices was not provided by Mr Hatrick and we are not satisfied that such a letter was ever sent. As already stated, there is no sign of such a letter in the Tribunal file. If, however, such a letter was sent, in our view Balogun Kirvan should have informed their client prior to coming off record that they intended to take such a step. They certainly should have informed their client that such a letter had been written to the Tribunal offices and they should have sent her a copy of it. We leave to one side the question of whether the solicitors were entitled to determine their retainer in such a way. We also note that Ms Kyamanywa did not disinstruct them until after the hearing on 6 September 2000."

11. Pausing there, the Appellant wrote to the Tribunal on 15 September informing them that she had that day disinstructed BK.
12. So the Tribunal applied the presumption that a notice properly addressed to a party's representative, here BK, is deemed to be served unless the contrary is proved. 1993 Rules, Rule 20(3). There was no copy of the letter from BK on the Tribunal's file dated 14 June. The Tribunal did not accept, in the absence of evidence from Mr Hatrick or any member of that firm, that that letter was sent or that BK did not receive the notice of hearing dated 17 August.
13. They noted from a letter sent by Mr Hatrick to Dr Seray-Wurie, that the Applicant did not disinstruct BK until 15 September, that is after the first hearing on 6 September. As we have observed the Appellant informed the Tribunal of that fact by letter of that date.
14. Thus the application for a review under Rule 11(1)(b) failed. The Appellant had failed to rebut the presumption of deemed service. See Migwain Ltd v Transport and General Workers' Union [1979] ICR 597.
15. We note from paragraph 9 of their reasons that the Tribunal rejected an application by Dr Seray-Wurie for an adjournment so that he could call Mr Hatrick to give evidence. That application was made during final submissions after the close of evidence.
16. Against the review decision the Appellant now appeals with permission granted by a division presided over by Mr Recorder Underhill QC, sitting on 20 September 2001. Having considered the learned Recorder's judgment and heard Dr Seray-Wurie and Miss MacLaren for the Respondent, it is clear to us that there is really one point in this appeal. Did the Tribunal err in law in refusing Dr Seray-Wurie's application for an adjournment during closing submissions, so that Mr Hatrick could be called to give evidence at the review stage?
17. We should interpose this. Following an invitation by the EAT on the last occasion to obtain a witness statement from Mr Hatrick, the Appellant has done so. It is dated 8 July 2002. Plainly that evidence could, with reasonable diligence, have been put before the Tribunal at the review hearing. We did not, in these circumstances, formally admit the witness statement. It failed the first limb of the Ladd v Marshall test. See Wileman v Minilec Engineering Ltd [1988] ICR 318 321 H.
18. In any event, the content of that witness statement is immaterial to the real point in the appeal. Either we uphold the Tribunal's exercise of discretion in refusing an adjournment or we overturn it, in which case the matter must be remitted for a fresh review hearing at which, presumably, Mr Hatrick will be called and cross-examined so that his evidence is tested in a way not open to us today.
19. Reverting to the issue in the appeal, Dr Seray-Wurie points out that the Appellant agreed to pay the costs thrown away by the adjournment. Further, it was not appreciated until the Tribunal hearing that BK's letter of 14 June was not on the Tribunal file. That is why the adjournment became necessary.
20. We have carefully considered those points but we are unable to accept that it has been established that this was an impermissible exercise of discretion by the Tribunal, applying the Court of Appeal guidance, particularly in Carter v Credit Change Ltd [1979] ICR 908.
21. As Miss MacLaren points out, it should have been obvious to the Appellant or her representative that Mr Hatrick's evidence was necessary to rebut the presumption of deemed service. He was then still employed by BK. It is not suggested that he could not have been called at the 21 March hearing.
22. Further, as the Tribunal point out, the principle of finality of litigation comes into play. The Respondent had a final decision in its favour dismissing the claim; that is the first decision. The review procedure permits a Tribunal to revisit such a finding in certain, necessarily limited circumstances. It was therefore incumbent upon the Appellant and her representative to establish a ground for review, in this case under Rule 11(1)(b). If she cannot do so in evidence, it must be open to the Tribunal in the exercise of its wide discretion to say 'enough is enough'.
23. We shall not reopen the evidence and grant an adjournment for that purpose but will proceed to decide the review decision appeal on the evidence which was adduced by the parties. In these circumstances we have concluded that no error of law is here made out. Consequently the appeal must be dismissed.