United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN WEST (Advocacy Systems Manager) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M2 5PB
For the Respondent	MR MARC JONES (Solicitor) Messrs Underwoods 83/85 Marlowes Hemel Hempstead Herts HP1 1LF


 


HIS HONOUR JUDGE BIRTLES:

1. This is an appeal from the decision of an Employment Tribunal sitting at Reading on Wednesday 25 September 2002. The Tribunal, in fact, consisted solely of the Chairman, Mrs J Hill, and the decision was entered on the register and sent to the parties on 4 October 2002.
2. This case has an unfortunate history and I think it is, therefore, important to refer to the chronology as I have extracted it from the papers. On 17 April 2002 the respondent to this appeal, Mrs Jane Burrell, filed an originating application at the Reading Employment Tribunal. The Originating Application was served on the respondent in the Employment Tribunal, the appellant to this appeal, on 19 April 2002, two days later. It follows that the respondent's Notice of Appearance should have been filed at the Tribunal by 13 May 2002. In fact, it was filed on 16 May 2002, three days later (see page 38 of the bundle). The Notice of Appearance itself is at pages 20 to 22 of the bundle.
3. That was the first breach of procedure by the respondent in the Tribunal. Time was extended by the Employment Tribunal on 29 May 2002 and the Notice of Appearance thereby validated (see page 9 of the bundle). On the same day, 29 May 2002, the Tribunal issued a standard directions form. That was in the form of an interlocutory order and is at pages 28 to 29 of the bundle. That interlocutory order, made in accordance with Rule 4 of the Employment Tribunals (Constitution and Rule of Procedure) Regulations 2001, contained, first, an order for disclosure of documents by each party: documents relevant to the issues in the case. Those documents were to be exchanged within 14 days of 29 May 2002. In fact, disclosure of documents was not complied with by the respondent in the Tribunal until 19 July 2002, some 5 weeks after the order had expired.
4. By letter dated 14 June 2002 the applicant's solicitors requested Further and Better Particulars. Those Further and Better Particulars were not supplied until 2 and 5 August 2002 but no order was made by the Employment Tribunal in respect of them. On 14 June 2002 the applicant applied for the respondent to be disbarred on the grounds of non-compliance with the interlocutory order of 29 May 2002. On 20 June 2002 the Reading Employment Tribunal office sent a letter to Peninsula Business Services Limited, who were the representatives of the respondent, in the following terms:-

"The file relating to this matter has been referred to a Tribunal Chairman who has directed me to inform you that under the powers conferred upon him by Rule 4(8) he proposes to make an Order that the Notice of Appearance be struck out on the ground that you have failed to comply with the Order dated 29 May 2002.

If you wish to say anything as to why such an Order should not be made, you should write to this office giving your reasons by 28 June 2002."

That is at page 40 of the bundle.

5. No response to that letter was received either by 28 June 2002, or by 10 July 2002, when the Employment Tribunal struck out the Notice of Appearance on the ground of non-compliance with the interlocutory order of 29 May 2002. I note in passing that the time period for non-compliance with the interlocutory order of 29 May was some six weeks and there had been no response from either the respondent or its representatives, Peninsula Business Services Limited.
6. On 11 July 2002 Peninsula Business Services Limited wrote to the Tribunal saying this:-

"We have today received a copy of the Striking Out Order. This matter was being handled by Sean Maguire a barrister who did have conduct of the case.

He has resigned without a proper and controlled hand over of files.

Until receipt of the Order we were not aware that we were in breach of a Direction's Order. In view of this we would ask the Chairman to reconsider the Striking Out Order. May we please be heard on this point."

That is at page 41 of the bundle.

7. As I earlier said on 19 July, the respondent did comply with the order for disclosure. On 2 and 5 August 2002 the respondent complied with the request for Further and Better Particulars: those are at pages 23 to 27 of the bundle. On 25 September 2002 the Employment Tribunal heard the application for a review and refused the application on the grounds that the interests of justice did not require it. That decision is at pages 1 to 4 of the bundle.
8. That is the chronology.
9. The Notice of Appeal is at pages 7-8 of the bundle and the material parts of it are contained at paragraphs 3 and 4. Paragraph 3 says this:-

"3. The grounds upon which this appeal is brought are that in considering the matter the Tribunal took into account irrelevant principle and failed to take into account proper principles in determining whether it was proper to strike out a Notice of Appearance.

4. Furthermore, they failed to take into account the need for an enforcement of Tribunal directions being in principle to seek compliance with those directions rather than to penalise and prejudice a party in default, other than as a last resort when a fair hearing cannot be achieved."

10. The power of the Employment Tribunal to review a decision is contained in paragraph 13(1) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. In this case it is accepted by both parties that the only relevant part of paragraph 13 is paragraph 13(1)(e) which says this:-

"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party, or of its own motion, to review any decision on the grounds that -

(e) the interests of justice require such a review."

This was the only paragraph relied on by the respondent before the Employment Tribunal and, therefore, the only sub-paragraph of paragraph 13(1) that I have to consider.

11. Guidance to the meaning of Regulation 13(1)(e) has been given by the Employment Appeal Tribunal presided over by Mr Justice Mummery, who was then President, in a case called Lindsay v Ironsides Ray and Vials [1994] IRLR 318. That case on its facts is some distance from the facts of the present case and much of the decision is not relevant to Regulation 13(1)(e) because it concerns other matters. But at paragraphs 22 to 25 the Employment Appeal Tribunal address paragraph 13(1)(e) and at paragraph 23(5) say this:-

"The power to grant a review on the grounds 'that the interests of justice require such a review' is in very wide terms. It is, however, a power which should be cautiously exercised. As was observed by Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277 at p. 281, 28, the interests of justice include not only the interests of the person seeking a review, but also the interest of a person resisting a review on the grounds that 'once a hearing which has been fairly conducted is complete, that should be the end of the matter.' There are also the interests of the general public in finality of proceedings of this kind. Mr Justice Phillips said at p.281, 29 that 'it should only be in unusual cases that the appellant, the applicant before the Tribunal, is able to have a second bite at the cherry'."

12. In that case of Lindsay, the Tribunal quoted at length from the decision of Trimble v Supertravel Ltd [1982] IRLR 451 and from the judgment of Mr Justice Browne-Wilkinson, as he then was.
13. The essence of the Lindsay case was that the solicitor representing Ironsides had made submissions to the Tribunal about an extension of time under section 68(6) of the Sex Discrimination Act and Miss Lindsay's representative had not dealt with that issue in her submissions, so there had been a failure by her. The result was the Tribunal did not extend time and Miss Lindsay's application was struck out or failed.
14. Mr Martyn West, for the appellant, in this case before me today, has argued that there is a real difference between the situation where a professional advocate makes an error at an oral hearing by failing to ask relevant questions leading to their client losing their case and a case such as this where there has been no hearing but rather a succession of procedural failures by Peninsula, the reason being that the person who was acting for Peninsula and for the appellant in this case, Caramba UK Limited, had left his employment and not handed over the files in a proper order, thereby leading to the series of mishaps to which I have referred. He would argue that these are either "a procedural mishap" or "a procedural shortcoming" or "a procedural occurrence" of a kind which are different from the errors committed by Miss Lindsay's solicitor in the Ironsides Ray & Vials case.
15. In my view, the law cannot be that there is such a sharp distinction between procedural error or failure at an oral hearing, and procedural error or failure which lead up to such an oral hearing, otherwise there would be many cases, or, many more cases, where a legal representative or lay representative or, indeed, a party in person, could drag their feet, disobey orders of the Tribunal, fail to co-operate with the Tribunal, thereby extending the time for the hearing of a case and preventing a proper hearing.
16. It seems to me that the decision of the Tribunal in deciding whether or not to extend time, must depend upon the particular facts of the case. It follows that the issue I have to decide is, whether, upon the particular facts of this case, the Tribunal Chairman, Mrs Hill, in her decision made an error of law. It is not the function of this Tribunal to go through line by line the decisions of Employment Tribunals. I mention solely the case of Meek. Mrs Hill heard representations from a solicitor for Mrs Burrell and an advocate, Miss Price for Caramba UK Limited.
17. In her extended reasons, Mrs Hill, first of all, sets out the history of the matter to which I have gone into in a little more detail, (see paragraph 1, 2 and 4 of her extended reasons). She then, in paragraph 6 summarised Miss Price's submissions: the explanation as to the failures of Mr Maguire. Mrs Hill records the fact that Miss Price told her that all the directions had been complied with by that date, that is 29 September 2002 and that it would not be in the interests of justice to allow the strike out to stand because it would not comply with the overriding objectives in the procedural rules. The overriding objectives are set out in Regulation 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 and the overriding objective as stated in paragraph 10(1) is to enable Tribunals to deal with cases justly. Paragraph 10(2) provides:

"Dealing with a case justly includes, so far as practicable-

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues; and

(d) ensuring that it is dealt with expeditiously and fairly."

The purpose of interlocutory orders is to achieve precisely those objectives.

18. Mrs Hill went on in paragraph 7 of the extended reasons to summarise the applicant's argument as to why the strike-out order should not be reviewed, and, essentially, those were twofold, first, that there should be finality in litigation and, second, that if the matter had been properly dealt with, it would have come to a hearing in August. Mrs Hill goes on to refer to Rule 13(1) of the Regulations and to take account of the extent of the phrase "in the interests of justice". And she took account of the experience of the Reading Tribunal with this particular firm of representatives, that is, Peninsula.
19. I start from the proposition of Vials that the discretion of an Employment Tribunal to review a case under Regulation 13(1)(e) is unfettered as to the circumstances in which it can apply that power but, in the language of Mr Justice Mummery, at paragraph 23(5), "it is a power which should be cautiously exercised." There is a separate way of dealing with a decision of an Employment Tribunal with which the party is dissatisfied and that is to appeal to this Tribunal. That was not done in this case. The way taken was to seek a review. There is no appeal against the decision to strike out.
20. In my view, the lamentable history of failure in this case by Peninsula quite clearly cannot be excused, and Mr West does not seek to excuse it. Nothing can justify the inaction that took place. In my view, the overriding objectives of saving expense and dealing with the case in a way which is proportionate to the complexity of the issues and ensuring that those issues are dealt with expeditiously and fairly, were applied by Mrs Hill in this case and in the decision that she reached. In my judgment, there is no error of law in the decision that she made to refuse a review, having gone into the history of the matter in some detail. If I am wrong in that, I do not consider that this is a case for remission. If I was deciding this matter for myself, I would take exactly the same view as Mrs Hill, on the history of this matter. This was a lamentable failure by Peninsula to act in the best interests of its client, Caramba UK Limited, and I am fortified in my decision by the fact that Caramba UK Limited do have an alternative remedy against their legal representative. For these reasons therefore the appeal will be dismissed.