United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J M ARNOLD (of Counsel) Instructed by: Baker & Co. Solicitors 189 Angel Place Edmonton N18 2UD
For the Respondent	MR R SINGH (of Counsel) Instructed by: Messrs Browne Jacobson Solicitors Aldwych House London WC2B 4HN


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is an appeal by the Appellant Baker & Company, against an Order of the Registrar made in chambers on 21 March 2003; that upon the failure of the Appellant to comply with the terms of an Order made on 3 March 2003 the Appellant's appeal be dismissed. The Order in question, made by His Honour Judge McMullen QC in chambers on paper in setting down the appeal for a Preliminary Hearing, was that within seven days of the seal date of that Order the Appellant lodge with the Employment Appeal Tribunal and serve on the Respondent further and better particulars of the Notice of Appeal in relation to two of the grounds.
2. The Order, of course, was required to be served on the Appellant, and until and unless it was served the Appellant could have no knowledge that that Order had been made against them, given that this was an Order made on paper, as is now, I believe, blessedly, the ordinary course at the Employment Appeal Tribunal. I say that because it saves such a degree of costs for the parties and indeed time that that system should be operated. But, of course, in order for it to be operated it is essential that the parties know about the making of the Order.
3. A letter was sent and received by the Employment Appeal Tribunal to the Appellant, dated 3 March 2003, enclosing a sealed copy of the Notice of Appeal and indicating that it had been listed for a Preliminary Hearing. That was necessary because it was only in that way that the Appellant should know that it was past the sift stage and on to a Preliminary Hearing.
4. There was also a separate letter of the same date which enclosed the Order. But that letter was, it seems, never received by the Appellant. It is plainly unfortunate that this should have been dealt with in two separate letters and I understand the system is now changed so that in fact there is only one letter after the making of an Order on the sift, both notifying the party of the fact that there will be either a Preliminary Hearing or a Full Hearing, as the case may be, and enclosing a copy of the Order. But the computerised system at that stage involved the sending of two letters and it appears that the first letter, which made no reference to the Order and thus to the outstanding obligations of the Appellant, was received, but the second letter which did enclose the Order was not.
5. Not surprisingly, because they did not know about the terms of the Order relating to further and better particulars, the Appellant did not comply with that obligation. They complied with their other obligations, in the sense that they were given notice of the Preliminary Hearing on 12 March and filed a Skeleton Argument in accordance with their obligations, but virtue of that Notice of Hearing, not as a result of having received the Order.
6. But, by virtue of the Appellant's failure to comply with the Order the Respondent wrote to the Employment Appeal Tribunal on 17 March indicating that the further and better particulars had not been served and consequently asking that, in accordance with the terms of paragraph 3 of the Order, the Appellant being in default of such lodgment and service the appeal should be dismissed, and the Registrar duly dismissed the appeal on 21 March.
7. It appears to me sensible that unless the Order specifically says, as it sometimes does, that "without further notice to the relevant party" the appeal will be dismissed, that there should be notice, either by the person applying for the case to be dismissed in accordance with an Order, or by the Appeal Tribunal itself to the party whose appeal is about to be dismissed, to give that party the opportunity to make representations. An Order in relation to striking out an appeal by virtue of a default is a more or less administrative Order, but of course it has very considerable consequences, as it has had in this case.
8. It appears to me, as I have indicated, that unless the Order made specifically says that the appeal should be dismissed without further notice to the relevant party, there should always be such notice, albeit by reference to a very short time scale. But in any event the Order was made by the Registrar in this case and neither the Respondent nor the Registrar knew that the Appellant had not received the Order in question at the time when that Order dismissing the appeal was made.
9. It seems that in relation to the Respondent also the Employment Appeal Tribunal had acted too by sending two letters, one containing the Notice of Appeal and the other containing the Order made; but, in the case of the Respondent, the Respondent had received both those letters and their enclosures, unlike the Appellant.
10. On receipt of the Order dismissing the appeal, the Appellants wrote on 3 April 2003 querying the dismissal of the appeal and by letter dated 7 April 2003 the Employment Appeal Tribunal responded enclosing a copy of the Order of 3 March, in default of which the Appellant had unwittingly been.
11. In consequence, the Appellant made an application under Rule 33 to the Employment Appeal Tribunal. Rule 33 of the Employment Appeal Tribunal Rules 2001 reads as follows:

33 (1) "The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that—

(a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;

(b) a party did not receive proper notice of the proceedings leading to the order; or

(c) the interests of justice require such review."

12. It appears to me that an application under Rule 33 was entirely appropriate in the circumstances of this case. It may be that the Registrar took the view that Rule 33 only applied to a decision of the full Appeal Tribunal, but it appears to me that it would apply just as much to a decision made on behalf of the Appeal Tribunal and in accordance with her jurisdiction by the Registrar.
13. In any event, the Registrar did not entertain a review, which could have been done on paper, but, in the exercise of her discretion, treated the application under Rule 33 as an appeal against her Order and so notified the parties in a letter dated 25 April 2003. Hence we now have a hearing of that appeal, which Counsel have attended on behalf of both the Appellant (of course, whose position has been prejudiced by what has occurred and who is very keen indeed to retain, or restore, its appeal) and for the Respondent who, perfectly understandably, would wish, if at all possible, to retain the advantage, fortuitous or otherwise, which she had gained, by virtue of the dismissal of the appeal. That plainly has incurred some expenditure of costs on both sides.
14. At the outset of this appeal it was unclear to me whether there could be perhaps be suggested to be an error by the Employment Appeal Tribunal as a result of which the Order was not sent to the Appellant, given that the letter of 3 March 2003, which alone the Appellant had received and which alone was included in the bundle, made no reference to enclosing the Order in question and, consequently, it appeared to me, might not have done so; thus might be explained the non-receipt of it by the Appellant. But the Associate has very helpfully produced for me from the file the second letter dated 3 March 2003, which, on any basis, expressly enclosed the Order. It appears to me clear, therefore, that no fault can be laid at the feet of the Employment Appeal Tribunal, but, if fault there be, it must lie at the door of the Post Office or, possibly, at someone in the office of the Appellant company.
15. But one way or the other, this appeal must, as effectively Mr Singh accepted in the course of argument, be allowed. No fault can possibly be ascribed to the Appellant company where the Appellant's solicitors had no notice of the Order having been made, where they otherwise acted diligently in accordance with what they understood to be their obligations in relation to those orders and hearings of which they did have notice, and at the earliest possible opportunity applied for a review in relation to this matter which fell plainly within the express terms of Rule 33 (1) (b) and indeed for that matter (c).
16. In those circumstances, this appeal must be allowed. I have taken the opportunity to deliver a judgment which will be transcribed for the two reasons which have become apparent from this judgment:

(1) My conclusion that, save in the case of an Order specifically indicating that no further notice will be given to either party, it is ordinarily appropriate for a judgment in default not to be entered where it is alleged that there has been a failure to comply with an Order, without at least checking that the party in question did receive notice of the Order; and

(2) That where there is an application for a review which is capable of being dealt with on paper, that course ought ordinarily to be followed, rather than listing inter-partes a hearing by way of appeal.