United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES ARNOLD (of Counsel) Messrs Kaj Mordi & Co Solicitors First Floor 402 Holloway Road London N7 6PZ
For the Respondent	MR MATTHEW SHERIDAN (of Counsel) Messrs Archon Solicitors Sun Court 67 Cornhill London EC3V 3NB


 


JUDGE D M LEVY QC:

1. Today, we were listed to hear an Appeal by Dr S M Vaezi-Nejad ("the Appellant") from a decision of an Employment Tribunal held at London South. The Tribunal sat on 7 July, 9-11 July and 10-13 June 2002. On 14 June 2002 the Tribunal met in Chambers to consider its Decision which was promulgated on 21 August 2002. One issue before the Tribunal was whether the Appellant was discriminated on the grounds of Race. That claim failed and was dismissed. Another issue before it the Tribunal determined that the Respondent was not in breach of contract towards the Appellant. Therefore his claim for Constructive Unfair Dismissal also failed and was dismissed.
2. A Notice of Appeal was lodged on the 4 November 2002. At the Tribunal Hearing, Mr Lewis, of Counsel, appeared for the Applicant and Mr Sheridan, of Counsel, appeared for the Respondent. Mr Sheridan appears before us today. Mr Arnold appears for the Appellant. He told us that he had been fairly recently instructed, as have those who instruct him.
3. It is common ground that the Notice of Appeal lodged is not one on which this Appeal can proceed. We have seen a skeleton argument by Mr Sheridan setting out what he understands to be the grounds of the Appeal, which suggests there is really no arguable point, but we have not got to that point in deciding the Appeal. This is because what was initially before us was an application for an adjournment by the Appellant. To that was added today an Application by Mr Sheridan for an order that we should strike out the claim. He drew our attention to the Employment Appeal Tribunal Rules 1993, Rule 26 – which read as follows:

"Default by parties – If a Respondent to any proceeding fails to comply with an order, or direction of the Appeal Tribunal, the Tribunal may order that he be de-barred from taking any further part in the proceedings or make such further order as it thinks just.

4. Although there has been no "unless order" made in this case, Mr Sheridan's submission to us is the various defaults of the Appellant to which he referred us, were such that a default order is justified. He has referred us to the prejudice of the Respondent because the facts relevant to the Appellant's application go back many years. He also points to the fact that the Grounds of Appeal are bias and perversity on which the onus is very high on the Appellant.
5. We turn to the events which have occurred since the decision was promulgated. On 4 November 2002 a Notice of Appeal was lodged. As the Appellant did not prepare either a chronology or a bundle for today's hearing, the Respondent helpfully has. On 30 September 2002 the Appellant lodged a Notice of Appeal. That was considered by Judge McMullen under the sift procedure. He gave directions by Order dated 10 October 2002.
6. That order provided that the Appeal should be set down for Full Hearing – Category B. The timed estimate for such a Hearing was one day. Standard directions as to what was to happen if bias was alleged. The order provided for an agreed Appeal bundle to be lodged not later than 35 days before the Hearing. The Appellant was to lodge a concise skeleton argument not less than 28 days before the Hearing and the Respondent was to lodge his answer 21 days before the Hearing. Any application to amend the Notice of Appeal was to be lodged within 14 days of the date the order was sealed.
7. On 7 November, the Appellant lodged an application for an extension of time to lodge an amended Notice of Appeal.
8. On 8 November, a further application was made by him for an extension of time to lodge the amended Notice of Appeal.
9. On 10 November, he made an application for extension of time to produce fresh evidence.
10. On 19 November 2002, the Employment Appeal Tribunal made an order extending time for lodging documents in respect of the amended Notice of Appeal for producing fresh evidence and for an Affidavit in respect of allegations of bias to 9 December 2002.
11. On 28 November 2002, the Applicant applied for an extension beyond 9 December in respect of that Order.
12. On 4 December 2002, the Employment Appeal Tribunal made an order refusing the application beyond the date of 9 December and drew attention to a provision in the Rules whereby orders for the costs could be made. In this period, the Appellant was acting in person.
13. On 9 December 2002, a document was lodged which was called 'Amended Notice of Appeal' together with an Affidavit relating to the allegation of bias and an application for permission to produce fresh evidence. The documents for the Amended Notice of Appeal run from pages 41 to 199 in the bundle. The application to produce fresh evidence runs from pages 251 to 345 in our bundle.
14. On 23 January 2003, this Tribunal wrote to the Appellant asking him to re-submit the amended notice underlining those parts which were added and striking through those parts he no longer relied on.
15. On 29 January 2003, the re-amended Notice of Appeal reached the Tribunal which runs from pages 200 to 250 of our bundle with underlining and crossing out, together with manuscript amendments to it.
16. On 26 March 2003, a further order was made by the Employment Appeal Tribunal. The Appellant was given the opportunity to lodge a statement by his Counsel relating to Affidavits on bias which had been sworn by two gentlemen. The Appellant was to lodge and the Respondent to respond to the Appellant's application to produce fresh evidence, the parties were to do this within 21 days of the sealed draft directions.
17. On 1 April 2003, the Respondent wrote to the Employment Appeal Tribunal stating it was puzzled by the order in reference to produce fresh evidence.
18. On 16 April 2003, the Appellant lodged "Provisional Draft Directions" which we find at page 437 of the bundle prepared for today's Hearing by the Respondent. The document at page 437 is not a Draft Direction, it is a letter stating

"….. I am sending you the Layman (Appellant) Provisional Draft Directions with a view of amending it at a latter date".

19. On 26 April, the Appellant asked for extension of time to lodge draft directions sought. On 29 April, he applied for a longer extension of time to draft them.
20. On 30 April, he wrote a letter which is at page 440 of the bundle which reads

"Following our earlier telephone conversation, please find the attached Appellant Directions for hearing but I am looking forward to hear from the Registrar regarding my pending application for further extension to early June 2003.

The original of these papers are in the post to you and I look forward to hearing from you about my pending application for extension.

21. On 11 May, the Appellant retained as solicitors for his Appeal Messrs Kaj Mordi ('KM'). That firm then instructed Mr Arnold, of Counsel, who appears for the Appellant today.
22. On 13 May, KM made an application for a 30 day extension of time to lodge a re-amended Notice of Appeal.
23. On 21 May 2003, having considered the application by the Appellant and a letter of the Respondent dated 16 May 2003, the learned Registrar of the Employment Appeal Tribunal made an order extending by 14 days the time for the Appellant to comply with the order of 26 March 2003, directing that any application to re-amend must enclose a draft and must be lodged within 14 days. The letter of the Respondent had included these passages:

"As you will be aware, our position throughout has been that the Appellant's pleaded case is fundamentally flawed and we do, of course, appreciate that this is as a result of him acting in person. We would also agree that it would be extremely helpful if the Notice of Appeal could be amended so as to clarify the Appellant's case, as this will assist in saving time at a Hearing. However, we are not entirely clear as to what the Appellant's solicitors are referring to when they mention agreeing the Employment Tribunal evidence and we are writing to them today in order to seek clarification.

In the meantime, we would have no objection to them being allowed a reasonable period in which to make the necessary amendments, provided that this does not impinge on the Hearing date of 11 July that had been notified to the parties a day or two earlier. Our concern would be that if they are granted an extension of 30 days there would be insufficient time for bundles to be prepared and skeleton arguments exchanged in accordance with your latest practice direction. Our primary concern in this regard is if the Appeal were to succeed and the matter is referred back to Employment Tribunal, many of the events about which the Appellant complains go back some 5 to 10 years and there must be a substantial risk that our Client would be severely prejudiced if a delay in the EAT Hearing were to push `any future Employment Tribunal further back."

24. Nothing appears to have been done by or on behalf of the Appellant in the 14 days provided by the Registrar's order.
25. On 1 July 2003, KM wrote to the EAT thus:-

"We act for the Appellant in this matter. As you are aware, this matter is set down for Hearing date on 7 July.

We sought leave to amend the Appeal which was granted, unfortunately we were unable to comply with the directions as the papers i.e, the papers within the Appellant's solicitors hands are quite unclear as you can glean from the papers currently filed with the EAT.

Our client is an Iranian national, he is currently in Iran as his Father has suffered a Heart Attack. We have requested that he should forward evidence which he shall submit to the EAT.

Upon his return we will be able to take full instructions and proceed to a full Hearing.

In the interim, we respectfully seek an adjournment of the Hearing of 7 July for three weeks."

26. Having heard from KM that an adjournment was sought, the Respondent's solicitors also sent a communication to the Employment Appeal Tribunal on 1 July in which they stated that they were sympathetic to the Appellant's domestic concerns and, if that was the only issue, they would not properly object to a postponement being granted. However, the letter contained a number of observations as to what had happened in the preceding month which we have summarised so far in this judgment. Numbered paragraph 5 of that letter reads

"We consider there is no reason why the Appellant's solicitors should not have been able to prepare this case for Hearing within the allotted timescale, even allowing for the fact that their client is now in Iran. We have already averted in previous correspondence to the fact that the longer this Appeal is delayed, the greater will be the risk of prejudice to our clients and we were recently instructed that one of our clients 'in principal' witnesses is leaving their employment shortly."

The letter concluded

"In the light of the above, with respect, we object most strongly to any further delay in the hearing of this Appeal. We would respectfully submit that neither the Appellant nor his solicitors have dealt with this matter in a reasonable or expeditious manner and it is wholly wrong that our client, which is a charitable institution with limited resources, should continue to suffer the cost consequences of the way in which the Appellant and/or his solicitors conduct this matter. In the circumstances, if a postponement is to be granted, we would respectfully submit that the Appellant should pay our clients costs as a result.

27. On 2 July 2003, the Employment Appeal Tribunal refused the application for an adjournment.
28. On 3 July, the Respondent's solicitors wrote to the Appellant's solicitors again seeking the skeleton argument and Appeal bundle.
29. On 4 July 2003, the Appellant's application for an adjournment came before the Registrar. The order which was made was that the matter was to remain in the list for hearing on 11 July and the letter containing it concluded

"You may of course wish to renew these submissions by way of preliminary point on this date."

30. Mr Arnold has renewed the application for a stay. It is now 3.30 pm. For some part of the day this Tribunal has heard another matter. For the larger part of the day we have perused the larger bundle of documents for the Hearing prepared by the Respondent because the Appellant had until very recently done nothing. Then an inadequate bundle was lodged. The effect of this was that the Lay members had little or no opportunity whatsoever to familiarise themselves with the matters in issue on the Appeal, the date of which the Appellant had notice on or about 13 May 2003. The directions of the Tribunal have been consistently not followed, not least the provisions of the order of 21 May 2003.
31. We well understand the Appellant's problems and, more particularly, those of KM who have frankly said that the Notice of Appeal is not ready and that "they wish to be able to evaluate the case" These were the words of Mr Arnold when submitting that there was a need to consider if there proper grounds for bringing an Appeal and, if so, to amend the Notices of Appeal.
32. We remind ourselves that the Decision of the Employment Tribunal was given as long ago as 21 August 2002. The family difficulties of the Appellant appear recent. If the Appellant is not now in a position to put forward a Notice of Appeal on which his representative can properly address us, whatever his difficulties and the family difficulties, in our judgment there has been too much delay, it would be wrong to delay the Appeal so far as the Respondent is concerned. We must be fair to both parties. In those circumstances, we refuse the application for a stay.
33. Mr Sheridan has now applied to us to strike out the matter and/or to de-bar the Respondent from taking any further part in the proceedings in the light of the judgment we have delivered.
34. We take into account that there has been no default order previously and the appeal of the Appellant has not been heard on its merits. However, we take notice of the fact that the Appellant was represented by Counsel at the hearing below and he raised allegation of bias on which we have seen the Chairman's comments. The case he put forward was relatively straightforward. Notwithstanding the fact that there has been no "unless order" served on the Appellant, in our judgment, the manner in which the Appeal has been conducted from the time of its inception until now, and in particular the flagrant failure to get a draft and amended Notice of Appeal to the Tribunal for the date fixed as early ago as May for this hearing, is such that a de-barring order can, and should, properly be made. We have taken into account the difficulties which the Appellant has been in and all of Mr Arnold's submission. In the circumstances of this case, in our judgment an order now to strike out is both just and proportionate. We have set out Rule 26 of the EAT Rules.
35. Mr Sheridan seeks an order for costs and he draws our attention to the Rule

"If it appears to the Tribunal that any proceedings or unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting proceedings, the Tribunal may order the party at fault to pay another party the whole or such part, as it thinks fit, of the costs or expenses incurred by that other party in connection with the proceedings."

36. Notwithstanding this Tribunal does not follow the usual practice in other Courts of costs following event, there has been conduct which, in our judgment does mean that the Appellant should pay some part of the Respondent's costs. We think that justice would be done in this case if the Appellant is ordered to pay the Respondent's costs of attending today's Hearing, such costs to be subject to detailed assessment if not agreed. We will make this limited costs order.