United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN WEST (Advocacy Systems Manager) Peninsula Business Services Riverside New Bailey Street Manchester M3 5PB
For the Respondent	MRS P M DUFFAY The Employment Law Advice Centre Limited 22 St Edmunds Road Northampton NN1 5EH


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal against an Interlocutory Order of a Chairman of the Employment Tribunal sitting in Reading, promulgated on 15 August 2003. By that Order it was provided:

"In exercise of powers conferred on me under Rule 4 (8) of the Employment Tribunal Rules of Procedure 2001, I order that the Notice of Appearance best struck out and the Respondent be debarred from defending for the Respondent's failure to comply with the Tribunal's Order of 24 July 2003."

2. The background is as follows. The Respondent is Mr Peter Kadama. The Appellant is CPM UK Ltd ("the Company"). Mr Kadama was employed by Mosaic Ltd from August 2000. The business within which he worked was transferred to the Company on 1 July 2002.
3. On 18 December 2002 Mr Kadama presented an Originating Application complaining of race discrimination. He had been pursuing a complaint by way of grievance procedure in accordance with the Company's internal procedures. They, a day later, wrote to him a letter dated 19 December, setting out how that grievance was dealt with.
4. On 16 January 2003 the Company presented a Notice of Appearance. It was represented then and has for almost the whole time since continued to be represented by an organisation known as Peninsula Business Services Ltd, which deals with employment law matters. Likewise, Mr Kadama came to be represented by the Employment Law Advice Centre Limited which, similarly, specialises in such matters.
5. In April a request for further and better particulars was delivered by Mr Kadama's representative directly to Peninsula Business Services. There was no satisfactory answer to that request. However, the request was not pursued further at that stage.
6. On 22 May 2003 a second Originating Application was presented by Mr Kadama. This application raised issues of race discrimination, victimisation and constructive dismissal. It took matters on from the application dated 18 December 2002. Mr Kadama's representatives intended that the two applications should be heard together; that is one reason they have given for not pursuing the request for particulars.
7. On 11 June 2003 a Notice of Appearance was presented by the Company. It was not then seen by Mr Kadama's representatives. It was in fact first seen by them at a hearing for directions, to which I shall come in a moment.
8. There came a time when the Employment Tribunal ordered, as it has power to do under Rule 20 of the Employment Tribunal Rules of Procedure 2001, that the two applications should be linked, which I understand to mean in the context of this case heard together. There was a directions application in respect of the two sets of proceedings which was indeed heard together.
9. The Order consequent upon that directions hearing is dated 24 July, the directions hearing itself having taken place on 16 July 2003. The Directions Order stated the issues between the parties. There were directions for discovery, which was to take place in August, a Schedule of Loss to be served in August and exchange of witness statements which was to take place at the beginning of November. The full merits hearing was set down for five days, from 24 to 28 November 2003.
10. Paragraph 2 of the Order reads:

2 "The Applicant had not at the time of the directions hearing had sight of the second claim's notice of appearance. A copy of this was provided to the applicant's representative at the hearing. The applicant will request of the respondent further and better particulars by 18 July 2003. The respondent is ordered to reply to such request by 1 August 2003."

11. It is plain that on that day no request of any kind was before the Chairman. The request made in April was not before the Chairman. Quite naturally, no request was before the Chairman in respect of the second Notice of Appearance, since Mr Kadama's representatives had only just seen it. The natural reading of the Order is that any further and better particulars requested will refer to the second Notice of Appearance. After all, there had been plenty of time for Mr Kadama's representatives to formulate and bring to the directions hearing a proper application in respect of the first Originating Application.
12. On 18 July 2003 a request for further and better particulars was served which concerned both applications. The requests concerning the first application were particularly detailed. They were all, in my judgment, perfectly proper requests. They were honed down from the request which had been made in April; and if they had been put before the Chairman on the directions hearing I have very little doubt that she would have ordered particulars in the terms there set out. There were also requests in respect of the second Originating Application. The requests here were in shorter compass. There were also two requests which concerned the case generally.
13. On 25 July 2003 further and better particulars were given by Peninsula Business Services on behalf of the Company. The response to the first Originating Application requests was wholly unsatisfactory. It simply said that all the matters of which requests had been made were documented and known to Mr Kadama. It is in fact clear from the second Originating Application that Mr Kadama knows a good deal about the matters requested, but that is no reason why they should not have been set out so that the Employment Tribunal and the parties all knew the issues which had to be met. So, as a response to a request, it was wholly unsatisfactory.
14. The response to the second Originating Application was, although succinct, rather better. I see no particular reason in substance, from my reading of the case papers, to quarrel with the answers to 1 and 2 of that request. The answer to 3 is curt and unnecessarily so. The answer did not give the name of the manager involved. It identified the manager by a letter sent on 17 April 2003. It would have been easier and simpler just to give the name and job title of the manager concerned.
15. Following the receipt of those particulars, Mr Kadama's representatives contacted the Chairman. On 6 August 2003 the Company, by its representative, was warned that, unless written reasons were given on or before 13 August 2003 as to why an order should not be made, a Chairman would consider striking out the Notice of Appearance and debarring the Company from defending the claim for non-compliance with the Order.
16. The Company, by its representative, wrote on 12 August 2003 to say that the matters raised had been covered in correspondence between the parties between October and December 2002, copies of which Mr Kadama had. It was said that the questions were duplication of information.
17. The Chairman, in the Decision promulgated on 15 August 2003, said:

7 "The Chairman did not consider that the information provided before proceedings were commenced could properly be the provision of further and better particulars. The purpose of further and better particulars is to identify issues. It was clear that the Applicant still had a number of issues to clarify with the Respondent. The Respondent made no attempt in respect of several requests to assist the Applicant or the Tribunal to understand their position.

8 The Chairman therefore considers the Respondent has failed to comply with the order of 24 July 2003 and to meet his duty under Regulation 10, I therefore orders that the Notice of Appearance be struck out and the Respondent be debarred from defending this claim."

18. Both the Extended Reasons and the Order refer only to one Notice of Appearance. There are of course two Notices of Appearance. The fact that cases are listed for hearing together does not, in my judgment, in any way operate to amalgamate Notices of Appearance. The result of the Order is to leave it uncertain whether the Chairman intended to strike out one Notice of Appearance or both.
19. There was an application for a review. On the application for a review the Chairman says that in paragraph 2 of the Notice of Appearance there is a typographical error because there is only reference to one Notice of Appearance. In fact, the misunderstanding of the position in the Order made originally is wider than that. Not only does paragraph 2 only refer to a single Notice of Appearance but the striking out Order only refers to a single Notice of Appearance, and paragraph 8 only refers to a single Notice of Appearance.
20. The submissions that were made on behalf of the Company in support of this appeal were as follows. First, it was said that the Chairman treated the case as if further and better particulars in the terms subsequently asked for had actually been ordered on 16 July; but on 16 July there was no request. There was no judicial decision to order them.
21. Second, it was submitted that the Order made at the hearing on 16 July was only intended to deal with the second Notice of Appearance. There had been plenty of time to formulate a request for particulars of the first Originating Application by that date.
22. Thirdly, it was submitted that the Chairman's decision did not make it clear which Notice of Appearance it was intended to strike out. It is submitted that it cannot have been intended to strike out both, for there was little or no issue about the particulars given in relation to the second application.
23. Fourthly, it was submitted that the Chairman did not direct her mind to the question of prejudice or injustice to the parties. There is nothing to show that she took that into account. It was submitted, however, that the key question in determining whether to strike out the application was whether it was possible to have a fair trial: see National Grid Company Plc v Virdee [1992] IRLR 555.
24. Finally, it was submitted that this was a disproportionate response by the Chairman to a breach of an order, even if there was a breach of the order. The hearing in November was still three months away. Witness statements were not to be exchanged until the beginning of November. There was ample time to issue an 'unless' order and it would have been, at most, an appropriate response to the default.
25. On behalf of the Respondent the following submissions were made. It was submitted that judicial consideration had been given to the request, given on 6 August and given on 15 August. The Order made at the directions hearing was an order of the court which could be enforced by striking out.
26. Second, it was submitted that the Order was always intended to deal with both Originating Applications. The particulars were served in respect of both of them. That is why it was done. It was done in accordance with what was intended at the hearing.
27. Third, it was submitted that the Chairman's Order should be read as striking out both Notices of Appearance. The Chairman had made an order linking the two cases.
28. Fourthly, it was submitted that the Chairman did take account of the question of prejudice. No specific submission had been made on the question of prejudice by the Company. The Chairman cannot be assumed to have ignored that question.
29. Fifthly, it was submitted that an immediate strike out order was not a disproportionate response to the default, which was serious, by a Company which specialised in employment law matters and which had not been corrected, even though the Chairman had written to ask for submissions as to why the case should not be struck out.

Conclusions

30. The Employment Tribunal's power to order particulars derives from the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001. The overriding objective pursuant to these Regulations is set out in Rule 10. The Rules of Procedure themselves are in Schedule 1. Rule 4, paragraph (1) of those Regulations empowers the Tribunal to make directions on any matter in connection with the proceedings. That may include particulars: see Rule 4 (3).
31. In my judgment, where an order for particulars is made, the order must identify the particulars which are to be given. The Order of the Chairman on directions could not do that. She did not have any request in front of her. What she was doing was laying down a timetable within which the matter had to be disposed of. Her Order in terms gives permission for a request by 18 July and orders a response to that request. But an order which leaves the request still to be made in the future and does not identify the particulars to be given is not a true order for particulars.
32. The right procedure in this case, once Mr Kadama's representatives were dissatisfied with the response, would have been for them to apply for an order for the particulars to be given, by all means with a date and an 'unless' order attached to it. But there needed, in my judgment, to be an order for the particulars themselves properly identified. There was no such order.
33. The jurisdiction to strike out under Rule 4 (8) is dependent on a requirement first being made under paragraph (1) and not complied with. In my judgment the Chairman overlooked the absence of a proper order for particulars when she made her striking out Order.
34. It does appear that when she made the Order on 16 July it was only intended to deal with the second Notice of Appearance. That may well have been what was in her mind when she laid down her timetable. But I do not find it necessary finally to decide that point.
35. When the Chairman exercised her discretion, as she thought she had, to strike out the Notice or Notices of Appearance, she made no reference to questions of prejudice, injustice or proportionality.
36. The law, in my judgment, may be summarised as follows. Where there is an order of a Tribunal and there has been disobedience to that order, it does not automatically follow that a striking out order or other sanction should be applied. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, whether a fair trial is still possible, what disruption, unfairness or prejudice the disobedience has caused and whether striking out or some lesser remedy would be a proportionate response to the disobedience.
37. The Employment Tribunal Rules of Procedure 2001 contain no checklist of matters to be considered. But in my judgment all these matters are to be considered. It was submitted that the crucial issue was whether a fair trial is still possible. That certainly is the crucial issue where there has been no default in a court order: see De Keyser v Wilson [2001] IRLR 324 at paragraphs 24 to 25.
38. It is, however, not a consideration which trumps all other considerations where there has been disobedience to a court order: see De Keyser v Wilson at paragraph 25 and the recent case of Bolch v Chipman (still unreported) at paragraph 22 to the same effect.
39. Therefore, an Employment Tribunal Chairman can, if she properly applies her mind to the overriding directive, strike out an application where there has been disobedience, if a fair trial is still possible. But, the matter is one which has to be carefully considered. At all times consideration must be given to the overriding objective and whether striking out is a proportionate response to disobedience. Millett J said in another context, in the case of Logicrose Ltd v Southend United Football Club Ltd (The Times 5 March 1998):

"The Court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice.

40. As I have already said, in my judgment in this case there was no proper foundation for the striking out application because there was no order as such for the particulars. But even if there had been such an order there is no adequate consideration, in my judgment, of whether striking out was a proportionate remedy. The case was not due for hearing until November. Witness statements were not due for exchange until the beginning of November.
41. While the Chairman was right to point to the default of the Company's experienced representatives, the Order is not made to punish the Company or them. An order for particulars with an 'unless' order attached to it would have been a proportionate response to what had taken place.
42. In my judgment what took place was a disproportionate response. Therefore, even if there had been a proper order for particulars, I would have allowed this appeal. There was no adequate consideration of the effect of the Order in terms of its justice to the different parties.
43. Therefore, this appeal will be allowed.
44. There is one final matter which I should add to the judgment and it is this. The Chairman's Order only strikes out one Notice of Appearance. That in itself is an unsatisfactory feature of the case. She may have intended to strike out both Notices of Appearance. If she did, then her Order is even more disproportionate for any default in respect of particulars concerning the second application was only minor. To leave, however, the case with one Notice of Appearance struck out and one Notice of Appearance in place would have been a significant injustice which was not required in the circumstances of this case.
45. So I will allow the appeal and set aside the Order striking out the Notice of Appearance.

[Following further discussion]

46. For the Order that was made below there will be substituted an order that the Respondent provide further and better particulars in accordance with paragraphs 1, 2, 3, 4 and 5.3 of the email dated 18 July 2003 by 4.30pm on 3 November 2003.

[Following an application for Costs]

Costs

47. It seems to me that the position is this: that so far as the appeal is concerned, there has been nothing unreasonable about bringing the appeal. So far as below is concerned, if there had been any costs below that had been incurred by reason of unreasonable conduct it seems to me that the tribunal to deal with those is the Tribunal below. Therefore there will be no order on your application for costs so far as the appeal is concerned, but you are at liberty below, of course, if you so desire, to make an application for any costs that have been unnecessarily incurred before the Employment Tribunal.