United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J DONOVAN (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


MR JUSTICE MAURICE KAY

1. There are before us in this case two appeals for preliminary hearing. They were last before the Tribunal on 5 July when two of us constituting the Tribunal today were together with a third who is not part of the Tribunal today. On that occasion, for reasons that are set out in a judgment of that occasion, we adjourned the matter until today. As it happens, this is the third occasion when the matter has been listed. There had been a listing before a wholly differently constituted Tribunal on 24 May.
2. Our task is to consider whether there are arguable grounds to allow these appeals to go forward. We have already indicated that in relation to appeal 'E' we take the view that there is an arguable ground. To that we shall return.
3. First, we must address the question of appeal 'D'. Appeal 'D' is in relation to a decision of the Employment Tribunal on 7 August 2001 which struck out two Originating Applications which had been issued by the Appellant. The Order of the Employment Tribunal that day records that the Chairman (who was sitting alone) refused the Appellant's application for an adjournment and, pursuant to Rule 15 of the first Schedule of the 2001 Rules of Procedure, he struck out the Originating Applications.
4. The Appellant appeals against that decision. Initially, she presented her Notice of Appeal on a self-prepared basis but when the matter first came before the Tribunal in May 2002 she had had the benefit of the assistance of Counsel, Miss Palmer, and Miss Palmer had produced a Skeleton Argument inviting the Tribunal to substitute new and in Miss Palmer's words, 'more concise' grounds of appeal which were four in number.
5. Today, the Appellant is represented by Mr Donovan under the ELAAS Scheme and so far as appeal 'D' is concerned, he has adopted Miss Palmer's four grounds and indeed her Skeleton Argument, although he has added to them in his oral submissions.
6. We say at once that the Tribunal is profoundly grateful to Mr Donovan and we hope that the Appellant is too. He has done her great service.
7. The decision of the Employment Tribunal really came to this. The Chairman took the view that the Appellant was not prepared to conduct litigation in an expeditious way and because of the way she had conducted the litigation before that time the case had become so stale that a fair trial could not be achieved.
8. The formal gravamen of this dénouement was a direction that, unless the Appellant produced further and better particulars of her two applications, and indeed other applications that are not before us, by a date in February 2001 her case would be struck out.
9. At the 11^th hour the Appellant sent a letter dated 23 February 2001. It is a very long letter. It runs almost to 40 pages of type script. It refers at the outset to the previous direction that failure to provide further and better particulars would lead to the claims being struck out. It then goes on to set out the Appellant's account of how she had had difficulty in complying with that Direction.
10. In the event, when the deadline came, the Respondents raised the matter in a letter dated 20 March 2001 and invited the striking out that had previously been intimated. The listing of that hearing was itself adjourned at the request of the Appellant but a hearing did eventually take place, as we have indicated, on 7 August.
11. We have referred to the decision of the Chairman. He was faced with submissions from counsel, on behalf of the Respondents, but the Appellant was not present. We shall return to that shortly.
12. Having made the observations to which we have already referred, and having referred to some of the procedural history in the matter, the Chairman said this:

21 "I have therefore asked myself whether there is any other Order I can make short of striking out, which will ensure that this case can be tried on its merits without further delay. I have considered whether to Order the Applicant to provide her evidence by way of statement before I order the Respondents to do so, so that they know the case against them in that way. I have considered whether to give her one last chance to prepare her case. But three years and more on from the inception of the case, hundreds of documents and tens and thousands of pounds worth of costs to the Respondents have still not even produced particulars of her claim. I have no confidence that any further steps I can take would ensure that this matter can come to trial. Ms Von Goetz knew at the beginning of this year that the failure to provide particulars would result in her claims being struck out and that moment has now arrived."

Mr Donovan seeks to advance four grounds of appeal against that decision.

13. The first is a complaint that the Extended Reasons make no reference to the long letter of 23 February, in which the Appellant had sought to explain her difficulties. Moreover, submits Mr Donovan, that letter was not simply an account of why she was not providing further and better particulars, it was a bona fide attempt to provide particulars to the best of her ability.
14. When this case began today neither Mr Donovan nor we had had sight of the request for further and better particulars of the Originating Application which gave rise to the history as we have related it. However, that was produced to us in the course of the hearing. Mr Donovan's submission was and is that the Appellant has provided further and better particulars in the letter of 23 February, albeit in "opaque and discursive terms".
15. When one considers the contents of the letter of 23 February against the formulated requests that were being sought there is, in the view of this Tribunal, a total mismatch. For example, focusing on the request under paragraph 13 and the contractual aspect of the complaint, the request is in fairly conventional terms: asking for identification of the contract, whether it was oral or in writing and amongst other things identifying any terms alleged to be broken; the manner of such breaches and the dates on which such breaches took place.
16. In our judgment, however generously one approaches the letter of 23 February it simply cannot be said to be a proper response to that request. As has been said on a number of occasions, to a considerable extent, the answering of that request was not a matter of great complication. It may be that the Appellant would have been in a better position to supplement any particulars following disclosure but there was an outstanding request. There was an outstanding Order that it be answered. There was an indication as to what would happen if it was not.
17. With the best will in the world, we cannot accept that it is arguable that the letter of 23 February was an appropriate answer to the request. If that is right, and we are sure that it is, then the failure to mention the letter of 23 February in terms does not seem to us to advance this first ground. It is suggested that the decision to strike out was vitiated by the failure to record a comparison of what should have been provided with what actually was provided. We do not see that that is an arguable complaint. Accordingly, in our judgment, Ground 1 as advanced by Mr Donovan is not arguable.
18. Ground 2 is related to it. One of the points made by the Appellant, in that letter and on her behalf today, is that she had provided further and better particulars to other Respondents in other cases during this period of time. Indeed, they were, on the information we have, very lengthy replies to requests for further and better particulars.
19. The complaint under Ground 2 is that the Employment Tribunal ought to have taken that into account and ought to have given her credit for what she had done in that regard and, in the letter relevant to this case, the one of 23 February. It is therefore said that failure to give recognition and credit to those matters is something which undermines the decision to strike out.
20. In our judgment, that does not provide an arguable ground of appeal here. What the Appellant had done in respect of other Respondents is of course no assistance to the Respondent in this case. The Respondent in this case was entitled to have this case processed in accordance with the Rules and in accordance with the Directions that had been given and in accordance with the timetables that were laid down.
21. We turn next to Ground 3. This goes to the refusal to adjourn on 7 August. The complaint is that the Appellant had made a cogent application for an adjournment, most recently in a letter of 3 August. She was seeking an adjournment on the grounds of her own ill health and on grounds of her mother's ill health, her mother being resident in Scotland.
22. There was enclosed with that application a letter from a doctor in Scotland dealing with the mother's ill health. There was also enclosed a letter from the Appellant's general practitioner dealing with her health situation. At the request of the Appellant, we shall say no more of the details of those documents in open court.
23. Whether or not to adjourn was a matter which called for the exercise of discretion, and as with any other discretion that discretion had to be exercised judicially.
24. One of the things which the Chairman was entitled to take into account was the history of the litigation. We have already recorded what he said about the three years and more from the inception of the case to that hearing, during which the disputed further and better particulars had not been provided. He had already adjourned the matter once at the request of the Appellant.
25. It may be that another Chairman would have acceded to the request for an adjournment. That, however, is not sufficient to show that, arguably, this Chairman wrongly exercised his discretion when he refused the adjournment. We have come to the conclusion that it is not arguable that he wrongly exercised that discretion on the adjournment issue. Having regard to the history it was open to him to proceed as he did.
26. We should add this, so far as that adjournment issue is concerned, that at that date in August another five months or so had gone by since February when the final default in provision of further and better particulars occurred. Nothing in the documentation which emanated from the Appellant during those four or five months can be said to have made good the default, as far as those further and better particulars were concerned.
27. As the Chairman said, they had still not been produced at 7 August. The deterioration in the illness of the Appellant's mother, which we of course accept – it must have caused difficulties for her – was of relatively recent origin and is not something which went to excuse the default over a period of very many months.
28. We also add this in relation to the third ground. If we were of the view that the Chairman had wrongly exercised his discretion by refusing an adjournment, or arguably so, it would still have been unlikely that we would have granted permission for this ground to proceed because we have seen no material which would lead us to the conclusion that the Chairman might have decided the case differently at a later date; whether the Appellant had been present or not.
29. That brings us to the fourth ground of appeal advanced by Mr Donovan. It really comes to this: he correctly points out that there were two distinct claims against the Respondent, the second of which, commenced by a later Originating Application, was in the form of an allegation of victimisation for having brought the first claim.
30. The suggestion is that whatever criticism may be made of the pleaded case in relation to the first claim, and the default in providing particulars of it, the same does not arise in relation to the victimisation claim because it is suggested the particulars attached to the Originating Application were adequate. Indeed, attention is drawn to the fact, for such it is, that whereas the Respondents had complained about the lack of particularisation of the first claim in their Notice of Appearance, they had not made that complaint in their appearance to the second claim.
31. However, there is a difficulty about this proposed ground of appeal. We are told that it was the subject of a request for further and better particulars of a form of kind, just as the first claim had been. However, Mr Donovan is not in a position to provide us with a copy of that document.
32. In the voluminous documentation we do not find any application on behalf of the Appellant to the Employment Tribunal to relieve her of responsibility to answer that request for further and better particulars. We must assume, because the contrary was never suggested at the time, that it was a proper permissible request for further and better particulars. It certainly fell within the ambit of the Order which said there would be a strike out if the particulars were not provided.
33. It follows that there was an ongoing and presumptively appropriate request, long outstanding, which had not been answered. Indeed, the letter of 23 February, which is said to provide some answer to the request in relation to the first application, says little of potential significance as far as the second application is concerned.
34. We conclude that the Chairman was entitled to include that second application in his strike out Order and that the contrary is not arguable. It follows therefore that the four grounds advanced by Mr Donovan, in relation to Appeal D, do not in our judgment contain within them anything that is arguable so as to justify a full hearing of Appeal D.
35. As we were retiring to consider Mr Donovan's submissions the Appellant, through Mr Donovan, expressed concern that we should not limit ourselves to Mr Donovan's four grounds and invited us to go back to consider her self-prepared grounds, which are in the original Notice of Appeal and are at pages 3-6 of the bundle. A lot of that overlaps with the points made by Mr Donovan. All we propose to say of the balance is that, in our judgment, it does not contain anything which could sustain a successful appeal in relation to this case.
36. The upshot of all that is that we shall not allow Appeal D to go forward and it is dismissed at this stage.
37. We return therefore to Appeal E. Following the decision of 7 August the Appellant applied for a review of the decision, at the same time applying for an extension of time in which to finalise that review. She did it by a letter dated 5 September 2001, which begins at page 32 of the bundle and which itself contains substantial enclosures.
38. When the Chairman came to consider that letter, he produced a decision dated 14 September 2001 and headed "DECISION ON AN APPLICATION FOR FURTHER TIME TO APPLY FOR A REVIEW". Under that appear these words:

"In accordance with my powers under Rule 17 of the Employment Tribunals Rules 2001 Schedule 1 the application by the Applicant made by letter to extend time for an application review of the Decision in this case".

Clearly that sentence was not completed. Grammatically it is not a complete sentence. What is abundantly clear is that it was a refusal to extend time; that much is made clear by paragraph 4 of the brief Extended Reasons.

39. The appeal against that decision has been reformulated by Mr Donovan today. He seeks to replace the Appellant's self-prepared grounds of appeal with these words:

"The Employment Tribunal erred in law by refusing without reason or justification the Applicant's application (pursuant to Rule 13 (1) of the Employment Tribunals Rules of Procedure 2001) for a review of the Tribunal's decision of 22 August 2001, alternatively by failing to consider an adjudicator on that application."

We should add that 22 August was the promulgation date, consequent upon the hearing of 7 August

40. It seems to us that this does raise an arguable ground of appeal. We consider it to be at least arguable that the Appellant's letter of 5 September sought both an extension of time in which to make an application for a review and, if that extension were refused, an application for a review.
41. If that be right, then the application for a review did not receive a substantive determination. The Chairman only addressed the application for an extension of time. For that reason we shall allow that appeal to go forward.
42. It is a short point. We anticipate that it would not detain the Tribunal for more than an hour and a half on some future occasion and it should go in listing Category B. In view of the time that has passed, we hope, but make no Order, that it can be accommodated at a reasonably early date.
43. It will be for the Respondents to consider how they should respond to that appeal. If they were minded to agree that there has been no determination of the substantive application for a review, it may (we emphasise 'may'; it being entirely up to them) be possible for them to consent to a remission to the Chairman so that he can carry out that review. We do not believe it is in anyone's interest for any part of these proceedings to be prolonged more than is necessary.
44. We have together formed the view, which is inescapable from the documents and her appearance before us today, that the Appellant is experiencing considerable stress in relation to these proceedings. We are sorry about that and we hope that, whatever be the outcome of the proceedings, the stress can be relieved sooner rather than later. 14 days for the Respondent's response on appealing.