United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBERTSON Company Representative Medran Developments 22 Hans Place London SW1X OEP
For the Respondent	MR J TAYLER (of Counsel) Instructed by: Mr T Shawdon Messrs Abrahams Dresden Solicitors 30 St John Lane London EC1M 4NB


 


MR JUSTICE BURTON

1. This is the hearing listed for today before us of an appeal by Medran Developments Ltd against the Decision by the Employment Tribunal on 9 January 2001 at London (Central) which decided:

(1) that the Appellant's answer and counter-claim be struck out, and the Appellant debarred from defending these proceedings;

(2) that it pay the Respondent's costs on the standard basis from 22 September 2000 up to and including the date of that hearing; and

(3) the matter be adjourned until 4 May before the same Tribunal for a further hearing on the merits.

2. The matter came before this Tribunal on a preliminary hearing on 3 May 2001, when leave for the appeal to proceed was given and an Order was made staying the adjourned hearing of the claim for unfair dismissal, at which the Appellant would have not been able to forward any defence on the merits, then planned for 4 May.
3. Mr Robertson, a Director, the only Director, of the Appellant Company, has appeared before us today and sought an adjournment; the basis on which he sought an adjournment, which he had previously adumbrated in correspondence with the Employment Appeal Tribunal Secretariat, is as follows: the company, which is a small company, is in dispute with its previous solicitors, Tehrani & Co, which firm has retained all the relevant documents on which he, as Appellant, would wish to rely on behalf of the Appellant Company. The dispute is one which is capable of being resolved, with his previous solicitors, but only if the Appellant Company is prepared to pay disputed monies to that firm, and he seeks an adjournment which was originally put as eight weeks but is perhaps more realistically now been forward as three months, a period which the Respondent has, if the adjournment be granted, agreed, to enable him either to instruct solicitors with the benefit of documents recovered from Tehrani & Co, or, if that cannot be done, then in any event to instruct fresh solicitors and Counsel with the benefit of documents which will, in the alternative, be obtained at a reasonable copying charge from the Respondent and his solicitors.
4. The application for an adjournment not only was made to the Secretariat, but through the Secretariat was made to me, and I refused it last week, on the basis that it could be renewed today. The Respondent, no doubt, had they not in the end agreed to the adjournment as a sensible course, would have no doubt opposed the grant of the adjournment as being yet another application for an adjournment, there having been, I think, two previous ones by the Appellant and one by the Respondent, and not likely to achieve anything, and what I had mainly in mind when I refused the adjournment, was that I was far from convinced that this appeal could not be dealt with on the papers, as they would now be and indeed they are, before the Tribunal, without the need for any further outside contribution either from solicitors and Counsel on behalf of Mr Robertson, who is clearly a very able man himself, or if necessary supplemented by the supply of any missing documentation. As will appear, it has become apparent to us during the course of the hearing, that there would be advantages in having Counsel and solicitors for the Appellant Company, and that there may be documents not presently before the Court which may need if not to be put before the Tribunal, certainly to be considered before the matter can be properly argued.
5. The basis upon which, therefore, this adjournment has been, in the end, sought and not vigorously opposed, and as will be seen, granted, is as follows: first, that we should give a Judgment today, indicating where the case has got, as presently before us, so that our understanding of it can be of assistance to the parties in preparing for the adjourned hearing, and possibly even reaching agreement, either compromising the appeal or perhaps even compromising the whole of this unfortunate matter, but certainly also for the adjourned Tribunal itself, which is most unlikely to comprise all, and possibly any, of the members presently sitting.
6. Secondly, that, pursuant to both the consideration that has been given in the course of the hearing today, and to guidance arising out of this Judgment, appropriate preparations can be made, so that both sides may be ready to argue the appeal on what seems to us to be a more appropriate basis than presently appears to be the case.
7. Thirdly, it is on the basis that the Appellant pays the Respondent's costs thrown away. We have heard submissions from Mr Tayler as to the kind of costs involved. It appears to us that nowhere near all the costs of today have been thrown away, for two reasons:

1) a good deal of the preparation of both Counsel and solicitors will have been necessary in any event;

2) the very convening of this Tribunal and consideration in the course of the morning of the case will have assisted the Respondent and his advisers in their preparations.

The sum that we order should be paid by the Respondent as a condition of the adjournment is the sum of £1000. Of course that is entirely without prejudice to the position of the Respondent if they are successful in the appeal eventually, to pick up any shortfall. It is not intended to represent the full amount of the costs of the Respondent in relation to today's hearing. Of course, equally, it would not in any way prevent the Appellant recovering its costs of the appeal, if it should be successful, always subject to the fact that this £1000 should not, of course, in those circumstances, be repayable.

8. Fourthly, I am asked to make clear by Mr Tayler, who has appeared for the Respondent, and would in any event wish to make clear, that we have not heard him today. The position of the Respondent is entirely reserved by way of its answer to the Appellant's case. Mr Tayler has been extremely helpful in supplying missing documents, and in answering some factual questions which we have put, insofar as Mr Robertson was not able to assist; but he has not developed his submissions and at any reserved hearing, he both reserves the right to resist the appeal, but also to contend that any submissions put forward by the Appellant, through fresh solicitors and fresh Counsel on the adjourned hearing, are not appropriate because, for example, they were not raised, if they were not, before the Tribunal below. Plainly, that must be right. On the other hand, of course, it is right, equally, for any adjourned appeal hearing to bear in mind that this was not a tribunal hearing evidence of fact; and consequently, if the Appellant, which was not successful in dissuading the Tribunal from making the Order they did, now puts forward arguments either more fully, or more persuasively, or even on a somewhat different basis, or by reference to documents to which the Tribunal's attention was not drawn but which were in fact before them, an appeal Tribunal, as it seems to us, is likely to allow such consideration to be given. But that is a matter for the adjourned Tribunal.
9. Against that background, I turn to this case. The Respondent was employed by the Appellant Company from about 1994 and it effectively became a two-man company of which the sole proprietor had been Mr Robertson, and in which he continued to be the lead Director and the sole shareholder. There is a statement which was provided by Mr Robertson in a form before us to which I refer, dated 16 June 2000, which explains the breakdown of the relationship between himself and the Respondent, and in general terms, the complaints on behalf of the Appellant Company made against the Respondent which, as he asserts, led inevitably and inexorably and justifiably to the dismissal of the Appellant. That concluded with a letter of dismissal, dated 21 July, which contains no reasons for the termination of the employment. Nor surprisingly, that led to the application brought by the Respondent in the Employment Tribunal on 19 November 1999 for unfair dismissal.
10. The state of the Notice of Appearance is of a little puzzlement to us. It was, it seems, originally served on 15 December 1999, and the box setting out reason for dismissal said: "Conduct/some other substantial reason". The attachment to the Notice of Appearance, as it is described, sets out the circumstances leading up to the dismissal in a very much shorter form than the subsequent statement by Mr Robertson. It refers, certainly, to circumstances which would, at least begin to justify, a redundancy defence, including the small size of the Respondent Company, and it being uneconomic to continue to employ the Respondent in any event. It also sets out allegations of breach of duty, namely mismanagement by the Respondent. In addition, it says at paragraph 7.3 as follows:

"It further came to the Respondent's attention that the Applicant had fraudulently claimed repayment of expenses."

11. There is then a counterclaim, at paragraph 7.11, further asserting that the Applicant had fraudulently claimed repayment of expenses, and had also been overpaid, such that there was a counterclaim in respect of the fraudulently claimed expenses and overpayment of salaries, particulars of which amount were to be provided. In paragraph 7.7 of the defence, the following was recited:

"It is denied that the Applicant was unfairly dismissed as alleged or at all. If, which is not admitted, it is determined that the Applicant was unfairly dismissed, it is contended that it would not be just and equitable to award the Applicant compensation in respect of the dismissal in view of the Applicant's conduct."

I cite this document on the basis of my present understanding that this was the original document; it is certainly dated 15 December 1999, and so described in the bundle. My puzzlement, anticipating now by some months what occurred thereafter, to which I shall return in due course, is this: on 21 July 2000 there was served an amended Notice of Appearance. This purported to change the reason for dismissal in the box on the first page to "Redundancy". I say purportedly to change it, because it may be that this was intended as some kind of supplementary document. It may, on the other hand, be that it was indeed intended to withdraw the allegations of conduct and/or other substantial reason in the original document, although the attachment still supported the case of relying on misconduct, or mismanagement, which had been attached to the original application.

12. The other peculiarity about the purported amended document was the apparent deletion from paragraph 7.7 of the words which we have quoted, relating to the claim to rely on the conduct, on the just and equitable ground, as justifying an order of no compensation. The particular puzzlement about this is as follows: as was really implicit in paragraph 7.3 of the document which we have quoted, and has been made explicit by Mr Robertson's answer to our question today, the existence of the alleged fraudulently claimed expenses was not known to the Appellant Company prior to the dismissal of the Respondent, and thus, on the basis of industrial relations law, could not be relied upon by the Appellant Company as justification for the dismissal, or reasons for the dismissal, but could only be relied upon on the defence of no compensation. It would therefore have made entire sense, perhaps when solicitors acting for the Respondent Company fully understood that this was subsequently discovered alleged misconduct, rather than known at the time of dismissal, for an amendment to be put in, in July, introducing a sentence into paragraph 7.7 asserting reliance on the subsequently discovered matters, by way of just and equitable grounds. What, on the face of the document appears to have happened however, and it may simply be a muddle in the documentation, is the reverse, namely that the reliance on the subsequently discovered conduct having originally been included, it was, for some reason, excluded in the amended document, albeit that the amended document otherwise, remained, including its counter-claim, unchanged. That is only the first of the puzzlements about this case.
13. At any rate, whatever the position was, and as we have indicated, it may be that the documents have become reversed in the bundle, after that Notice of Appearance there was a request for Further and Better Particulars of the Notice of Appearance served by the Respondent on 24 January 2000. We do not have a copy of that request, but it appears to have been a very limited one, simply seeking Particulars of the alleged overpayment of expenses and salary.
14. An Order was made that the Appellant Company serve Particulars of the counter-claim by 10 March. They sought, successfully, an extension of the Order to 24 March, and on 23 March, thus in time, served the requested Particulars of the counter-claim of which no complaint was ever made by the Respondent or his solicitors, and thus there was compliance with that Order and, on the face of it, satisfactory provision of Particulars, as requested.
15. On 20 April 2000, the proposed hearing of the application was postponed at the Respondent's request because he was not ready, to 16 June. On 16 June, the hearing came on and this time it was the Appellant Company who sought an adjournment because it was not ready, and the Tribunal made an Order for adjournment, as it put it, reluctantly, on the basis that, as it seems was offered by the Appellant Company, it should pay the costs of such adjournment which were to be assessed; as I understand it there was no figure placed upon the costs at that stage.
16. Orders were made by the Tribunal on 16 June which were described as "Directions" in paragraph 6 of the Tribunal Decision. There is, so far as we can see, no separate Order, which is perhaps unfortunate, because it is unclear to us whether any, and if so which, of the matters that were set out in paragraph 6 of the Decision were intended to be real Orders and which of them were intended to be directions as to how best to cope with the outstanding claims. Those directions included leave to the Appellant Company to amend the Notice of Appearance by 7 July, directed that any request for Further and Better Particulars from either party must be made by 21 July, and if made, should be provided by 4 August. It also set out that witness statements should be exchanged not later than twenty one days before the hearing date, and it made certain other directions, including directions for discovery that each side should send to the other, by 30 June, copies of all documents upon which they intended to rely at the hearing.
17. It appears, as Mr Tayler is instructed, that it was at that hearing that Mr Robertson attended with two large bundles of documents, which are not referred to as having been taken into account at all by the Tribunal below, but have been shown to us. They are covered by a statement of evidence from Mr Robertson, to which we have earlier referred, dated 16 June, and that statement then annexes twenty two tabs of documents, which are largely updating of the earlier schedules attached to the Particulars served on 23 March, relating to the alleged overpayment of salaries and expenses, but which appear to include other financial information as well, albeit in a relatively undigested and indigestible form.
18. A hearing date was set for 4 October to last three days. The timetable was slightly extended in relation to Further and Better Particulars by agreement, and pursuant to that extended timetable, the Respondent served on 4 August a request for Further and Better Particulars. Now by that time there had been the further service of documents by the Appellant Company, again not mentioned by the Tribunal below. These were as follows: a further copy of the Statement of Evidence of Mr Robertson, with nine more annexures. One of these annexures was the dismissal letter, but otherwise they were all, as far as can be seen, new documents. They included a statement at item 9 by a Mr Nicholas Sercombe, who would have supported, if called, and does in some particularity support in the statement, the case made by Mr Robertson in relation to a specific event of alleged misconduct, witnessed by Mr Sercombe on the afternoon of Tuesday 18 May 1999, some month and a half before the dismissal, upon which the Appellant Company relies. It was that document with its annexures and not the previously served Notice of Appearance or the amended Notice of Appearance, to which we have referred, or the Further and Better Particulars supplied on 23 March, or indeed the bundles which were served on 16 June, which formed the target of the request for Further and Better Particulars by the Respondent, then acting in person, on 4 August, and his request was a relatively limited one. It read as follows:

"This letter is formally to request Further and Better Particulars in respect to the documents appended to the Statement of Evidence of Mr Robertson:

1 Item 4 - balance on Director's Loan Account - please let me have full details of how this was incurred, what it relates to and the date/dates of the amounts incurred.

2 Item 7 - some Areas of Mr Howarth's Cost Group - the documents set out 13 items of alleged costs to the Medran group. Please let me have full details of all of these items the individual amounts which make up these sums and to what they relate, all relevant dates supporting documentation."

That then is a request, no doubt perfectly properly within the ambit of the directions provided for on 16 June, albeit it was not specifically directed towards an actual pleading, which required answers, although they clearly do not go to every part of the Appellant Company's case, but only to two of the appendices to the Statement of Mr Robertson; and it is certainly not indicated to us, nor does it appear to have been indicated to the Tribunal below, or to have formed any part of their consideration, as to whether such request goes to the centre of the case for the Appellant Company or the Respondent, or otherwise, or how far it relates, if at all, to the redundancy defence in any event.

19. The Appellant Company did not reply to those Particulars within the timescale provided by the Order as amended, namely 18 August; and, on 30 August, there was a further Order made for service of the Particulars by 13 September. It was pointed out by the Respondent's solicitors before the Tribunal hearing in January that the Order for service of the Further and Better Particulars by 13 September was accompanied by a notice of the power to strike out for non-compliance, but it was not a Final or, indeed, Unless Order. That Order was still not complied with by 13 September, but the Appellant Company did not ignore the Order, they sought a further extension for compliance, setting out their grounds, and the Tribunal, by a letter of 14 September, extended it, under cover of the letter which read as follows:

"The Chairman has instructed me to inform you that an extension of time for compliance with the outstanding order for particulars has been granted until 22 September 2000 only. I am instructed to point out that a further extension is very unlikely to be granted and to draw parties attention to the penalties attached to the original order."

That Order was thus again not a Final or Unless Order. It was itself not complied with by 22 September.

20. In the meanwhile there was correspondence between the parties and, in particular, a detailed letter by the then solicitors for the Appellant Company, dated 27 September 2000. That set out a considerable amount of particulars in relation to the fraudulent expenses matter, based upon what was described as being "research" in the many files of the company which they had carried out, and had recently come to light and they wanted further time to consider. They sought that the present action be stayed until their investigation was complete, or alternatively, that the present action be postponed for a period of six months while they investigated the matter further, and the letter continues that the Respondent was due to hand in Further and Better Particulars on 22 September:

"Under the circumstances we are not in a possession of all the documents and we respectfully submit it is not feasible for us to hand in the Respondent's Further and Better Particulars at this stage. We respectfully request that the deadline for Further and Better Particulars be extended till such time as we are expected to be in possession of all the documents and new directions are sought. We apologise for making a late request, but at the time we applied for an extension to file Further and Better Particulars we were not aware of the extent of the embezzlement and fraudulent activity conducted by the Applicant and his wife. We requested a mutual postponement from the Applicant's solicitors but they have declined."

That letter indicates that it was not simply an ignoring of the Extension Order of 14 September, but an attempt to seek a yet further extension of the time.

21. There was a detailed reply by the solicitors for the Respondent, dated 2 October 2000, setting out its point of view, answering this specific new allegation, so far as they could do, and accepting that in relation to two of the items there had been what they describe as a genuine mistake in the expenses claimed by the Respondent, and said that at the then planned hearing on 4  October they would seek an Order that the Respondent be debarred from defending the Applicant's claim, and that the Respondent's counterclaim be dismissed, on the basis of default with the Order dated 16 June and failure to pay the abortive costs of 16 June. It is not clear to us whether at that stage, the costs of 16 June had been quantified, but in any event there had been some correspondence about it, and in due course, the costs were paid on 9 November 2000.
22. The Respondent sought an adjournment of the 4 October hearing date, unsuccessfully, before the Employment Tribunal and appealed to this Tribunal, which appeal was heard on the day that would otherwise have been the first day of the hearing, although as it turns out the Tribunal did not have membership available to effectuate a hearing, in any event, and the application for an adjournment was rejected by this Court in a judgment of which we have a copy, given by Judge Peter Clark. Paragraph 16 of Judge Peter Clark's judgment concludes, after carefully considering the arguments for and against an appeal, as follows:

"Despite Mr Green's best efforts, we accept Mr Tayler's submission that this appeal disclosed no arguable error of law. It was a hopeless appeal in that limited sense, and that is the sense in which we must judge this application. Accordingly, we order [ as they did] a further sum of £555 to be paid"

That sum too, was paid by the Appellant Company in November, when they paid the earlier sum due. As it turns out, although, therefore, that appeal was unsuccessful, there was not a feasibility at the Tribunal to organise a hearing for the remaining two days, 5 and 6 October and so therefore it was adjourned, to an original date which was going to be December, but in the event was adjourned to 9 January, as we have previously indicated.

23. The Further and Better Particulars which were outstanding, pursuant to the earlier Order, were supplied, after a holding letter dated 5 October when the solicitors said they hoped to forward the Further and Better Particulars by 6^th, on 11 October, and that was nineteen days out of time under the Order. As we have pointed out, however, by reference to reading that original Order, the original Order was not a final Order, nor certainly, an Unless Order. The Particulars that were given on 11 October relating, as we have said, simply to item 4 and item 7 of the annexures to Mr Robertson's statement, are not full. Item 4 indicated that the Appellant Company was no longer in possession of information giving further particulars, but they were seeking to obtain it, and indicated, as to which we do not know the answer as to whether it is accurate, that the Respondent was already in possession of the information, it having been previously supplied to him by the company auditors. So far as item 7 is concerned, the thirteen items, of alleged mismanagement, there is an answer given in relation to each of the thirteen items and it does not appear that the Tribunal below was addressed in any detail on any allegations of shortfall in Particulars, specifically in relation to those items.
24. The first, however, namely VAT, on its face indicates that some information is not provided, and that says as follows:

"Our client maintains that your client contacted Messrs Moon Beaver and obtained confidential information from them relating to our clients' confidential VAT matters, when your client had no authorisation to do so. In the absence of your undertaking, that documents will only be used for the purposes of this action, our client is not prepared to disclose highly confidential information to you. Such confidential VAT information is also presently the subject of legal proceedings"

and then certain information is given but they continue:

"We again reiterate that if you agree to our undertaking as requested, we will be in a position to provide you with confidential VAT information."

That is a reference to earlier, and subsequent, correspondence in which such an undertaking was sought from the Respondent's solicitors. Although we have not heard Mr Tayler on this point, and there may well be an answer, on the face of it, it seems to us strange, if not extraordinary, that no such undertaking was, when asked for, given by the Respondent and his advisers, not least because it would be his ordinary obligation in any event. All that occurs is a denial of any inappropriate or illicit obtaining of information by the Respondent, but with an express statement that no such undertaking will be given. Whether that was a sufficient position for the Respondent or the Appellant to take again does not appear to have been considered by the Tribunal below in its consideration of the adequacy of the Particulars given by the Appellant in the letter of 11 October.

25. That then leads, with the exception of the payment of the sums of costs of November to which we have referred, to the hearing on 9 January 2001. By that time, it had been clear that there was to be no merits hearing and that what was to be dealt with was the application to strike out the appearance and answer and the counterclaim, which had become expanded, most recently by a letter of 13 November 2000, to add, in addition to Rule 4(7) reference to Rules13 (2)(d)(e) and (f) to Schedule 1 to the Industrial Tribunal Regulations.
26. When the hearing came on, on 9 January before the Tribunal below, some consideration had clearly been give by those advising the Appellant, and they had decided to seek to withdraw the counterclaim, on the basis that the claim, now having been further expanded by the further discoveries, that have been referred to inter alia in the letter which we have quoted, to well over the jurisdictional limit of the Employment Tribunal; and they sought such permission from the Tribunal, and the Tribunal ruled that it would consider that application after the application before it to strike out the answer and the counterclaim. The Tribunal proceeded to strike out the answer and, refusing leave to withdraw it, to strike out the counterclaim and ordered costs, as we have set out, and it is that decision by the Employment Tribunal which is before this Tribunal today. Mr Robertson, as we have indicated, was not in a position to develop his case himself, not being a lawyer, albeit he had a considerable grasp of the facts of the case, and equally did not have either all the documents before him, or in particular, a full appreciation of the way in which his defence would be pursued, namely whether it would rely on, as appears to be the case, redundancy and conduct.
27. The questions, which appear to us to need to be considered, and in the end we concluded could not be fully considered today on a basis fair to either party, are as follows. First, what is and was the nature of the defence in this case? It would appear to be clear now, as a result of Mr Robertson's statement, that the alleged dishonesty relating to the over-claim of expenses is not relied upon by way of defence to the claim, but subject always to the apparent muddle about the state of the Notice of Appearance, is only sought to be relied upon by way of relevance to the no compensation issue. Equally, it is clear that the fraudulent expenses are not sought to be relied upon now in this case by way of counterclaim, but are only to be pursued in the High Court. So far as the High Court proceedings are concerned, Mr Robertson tells us that he believes that the proceedings have been issued, but because of his problems with the solicitors who have the conduct of the issue, are not yet served. Mr Tayler points out that it would look as though the four months necessary to serve such proceedings have now expired, such that an extension would be required, and, insofar as any matters which were the subject matter of the proceedings not yet served have, now become statute barred namely relating to more than six years ago, it may well be difficult for the High Court to grant, or for the Appellant Company to persuade the High Court to grant, an extension, so far as those matters are concerned. But no doubt whether the Appellant Company obtains renewal of the proceedings, or issues fresh proceedings, there will be proceedings on foot, relating to alleged mismanagement and alleged fraudulent over-claim of expenses, relating to the period six years prior to the relevant High Court proceedings. But they are no longer relevant in the Employment Tribunal, assuming the Employment Tribunal proceedings were to go forward, except insofar as stay of the latter might arise for consideration.
28. It is unclear, as we have indicated, whether the defence per se is limited to redundancy or whether the defence per se in the Employment Tribunal also relies upon conduct; certainly Mr Robertson has indicated that, so far as he is concerned, the reasons for the dismissal were both conduct and redundancy, and he was surprised if the proceedings have in some way been amended, so as to purport not to reflect that position. But he accepts that the alleged fraud could only be relied upon on the basis of an allegation of no compensation, and again, he would be surprised if the right of the Appellant Company to assert reliance upon the alleged fraudulent expenses, as a defence to compensation, albeit not a defence to unfair dismissal, has in some way been ousted by an alleged amendment. That then is the state, uncertain as it appears to be at the moment, of the pleadings.
29. The next issue relates to the alleged default by the Appellant Company. The default which was specifically identified was the failure to supply the Particulars, pursuant to the request of 4 August. However, a number of matters appear to arise out of that. First, the request itself related only to what appears to be a small part of the documentation served in July, and there appears to have been no consideration by the Tribunal below of the documentation which had been served, and as to how an alleged failure in relation to two items of it goes to either any question of inadequacy of the case, or to any question of contumelious behaviour, not to speak of frivolous or vexatious behaviour by the Appellant Company. Secondly, as was made plainly clear to the Tribunal below as being part of the Appellant's case, the Particulars were in fact supplied, albeit nineteen days late, and well before the hearing in January 2001. Thirdly, the Order which was breached was not a final or Unless Order and fourthly, the issue of relevance to the defence was not, it appears, adequately canvassed below, nor the fact that the earlier Order for Particulars had been complied with and was not suggested to be inadequate. Fifthly, there was it seems, some consideration before the Tribunal below of the adequacy of the Particulars eventually served nineteen days late, but no detailed consideration, it would appear, and certainly no consideration of the disputed issue as to confidentiality to which we have referred.
30. In those circumstances, insofar as there was a breach, it was necessary and would be necessary to consider the materiality of the breach in the proceedings, and the question as to whether it was a contumelious one, or amounted to frivolous and vexatious conduct, and/or what effect the failure to comply by nineteen days, or at all, had on the conduct of the proceedings.
31. The third issue, insofar as the Employment Tribunal were being asked to, and perhaps did consider, something over and above the failure to comply with the Order for Particulars in July, would be whether there were any other defaults. It is plain, as we have indicated, that there was not a breach of the earlier Order for Further and Better Particulars, complied with on 23 March, and no mention appears to have been made of that before, or certainly by, the Tribunal. The failure to pay costs appears to have been mentioned, at any rate in the chronology that was put before the Employment Tribunal, but we do not see that that, of itself, could amount to sufficient, certainly where, in the event, one of the costs Orders was complied with quite speedily, and it is unclear whether there was any consideration as to how far the failure to comply with the other one, which had already been remedied well before the hearing in January, could be said to have been contumelious or serious.
32. As for the failure to serve witness statements in compliance with the Order insofar as that was relied upon, there was in fact no hearing twenty one days prior to which the witness statement had to be served, but the hearing was limited to the strike-out, and there appears to have been no consideration by the Tribunal as to the materiality of the absence of witness statements, not least in the light of the fact that statements from Mr Robertson and Mr Sercombe were, indeed, served, but not considered, it seems, by the Tribunal below.
33. The fourth issue would be the question, insofar as there were a default or defaults, and insofar as serious and material, of what was or would be the consequence of that, either in terms of prejudice or in particular in terms of the handling or fair outcome of the case. Did this go to the question of redundancy, which was certainly one of the live defences put forward? It would appear, on the face of it, clearly not at all. How far did it go to the defence of conduct? That too, would need to be considered, and the question would arise as to whether any established breach by failure to comply with an Order, contumelious or otherwise, went to the root of any of the particular claims of conduct. Insofar as it went to fraudulent expenses, then consideration would need to be made as to how that would remain relevant at all: in the Employment Tribunal the counterclaim was being withdrawn or alternatively being dismissed, in any event, the only issue potentially being how far such matters could be relied upon on the question of no compensation. The nature of the Order sought and, in fact in the event given by the Tribunal, would need to be considered; if and insofar it was punitive, was it proportionate, and insofar as it was something other than punitive, then how far did it reflect accurately on the consequences of any breach found?
34. Clearly all those matters will have to be considered on the adjourned hearing. It may be that by then, with the assistance of Counsel instructed by the Appellant Company, the position will be much clearer as to what the nature of the defence is, if the defence is to be permitted to go forward; how far and to what extent conduct is to be relied upon; how far and to what extent alleged fraud is to be relied upon on the issue of no compensation and what the state of play is in the High Court proceedings. For a remedy for the Appellant Company, if successful in its appeal might, taking into account any breaches found, involve issues (i) as to what can be relied upon by way of defence on the hearing of unfair dismissal, whether redundancy only, or redundancy and conduct; and (ii) if the outcome of the unfair dismissal application on liability, were that the Respondent were successful, how far and to what extent conduct and/or fraudulent expenses can be relied upon on the issue of no compensation, and (iii) whether there be a stay pending High Court proceedings, and if so, at what stage.
35. Of course, before the Appeal Tribunal can interfere it must be satisfied that there have been errors of law or an unlawful exercise of discretion, or absence of exercise of discretion by the Tribunal below. The areas for consideration will plainly include the following.
36. First, whether the consideration by the Tribunal, of their own motion, of issues of want of prosecution which plainly seem to us, at any rate, not to be relevant - there not being any question of failure to pursue a Notice of Appearance, and even insofar as Rule 13(2)(f) could be said to extend to a counterclaim, that counterclaim being, in any event, no longer relied upon - and their apparently inappropriate reliance on authorities on want of prosecution, can be said to vitiate this Decision.
37. Secondly, whether the Tribunal properly considered the matter in law by identifying:-

(1) whether there was a default;

(2) what the nature of that default was, and, if there was one, whether it was contumelious or repeated, or otherwise;

(3) whether there was any conduct which could be characterised as frivolous and vexatious, and if so what;

(4) what prejudice, if any, was caused by any default and/or what consequences any default had on the action;

(5) whether any step they were taking was punitive, and if so, whether any punitive action was either required or proportionate;

and whether the Tribunal, in the light of paragraph 13 of its Decision, gave any adequate consideration at all to any course other than that which was taken.

38. Such questions would obviously include consideration of whether the Tribunal considered all the matters to which we have earlier made reference, and in particular, so far as facts are concerned, whether they had in mind at all either the previous adequate supply of Particulars in March by the Appellant Company, or the statement of Mr Robinson and its many annexures, and the other documents supplied on 16 June.
39. Further, the Appeal Tribunal will need to consider whether any exercise of discretion occurred and if so, on what basis, in relation to the Tribunal's refusal to permit the withdrawal of the counterclaim but its decision instead to dismiss it. In all those circumstances, the Appeal Tribunal will have, in our view, much to consider and will be inevitably very much assisted in there being legal representation on both sides.
40. As we have indicated, if, in the meanwhile, the parties can come to an agreement either overall, or in order to avoid the need for this appeal, that would be obviously desirable. In those circumstances, this adjournment is granted, but it is, I hope, to be regarded by the parties only as a constructive adjournment and then be one which enable the matter, if it does come back, to be fully and properly and appropriately considered.