United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW BUCHAN (of Counsel) Instructed by: Messrs Huggins & Lewis Foskett Solicitors 5/6 The Shrubberies George Lane South Woodford London E18 1BG
For the Respondent	MR JEFFREY BACON (of Counsel) Instructed by: Messrs Morris Roberts Solicitors 14-15 Spilman Street Carmarthen SA31 2PD


 


HIS HONOUR JUDGE PETER CLARK

1. This case is proceeding in the Cardiff Tribunal. The Applicant, Mrs Holman, was employed by the Probation Service from 1 February 1993 until 2 July 2000. On 29 September 2000, or shortly thereafter she presented an Originating Application to the Tribunal. She was then represented by experienced solicitors, Messrs Withers. She complained of unfair dismissal, disability discrimination, breach of contract and racial discrimination. She is of English nationality. A claim for damages and personal injury was lodged in the High Court on 11 October 2001. Those proceedings have been stayed pending the outcome of these Tribunal proceedings.
2. In August 2002 the Applicant changed solicitors, her new solicitors, Huggins & Lewis Foskett being funded under legal expenses insurance cover. That firm has instructed Mr Buchan of Counsel, who was retained by and gave advice to Withers from time to time during their conduct of the Applicant's case.
3. The case has been twice listed for hearing and adjourned, the last time in August 2002. In September 2002 the parties were notified of the present hearing dates, that is two weeks starting on 13 January 2003.
4. On 6 December 2002 Huggins applied for a postponement of the hearing fixed for 13 January. They pointed out that they had not received the papers, running to six full storage boxes, until late October/early November 2002. They had not been able to fully digest the documents.
5. Further disclosure sought by Withers in letters of 17 May and 7 June 2001 had not been provided by the Respondent, although their disclosure has already run to about one thousand pages of documents. There had been no exchange of witness statements. They applied for an Order for specific disclosure. The case was not ready for hearing. If the hearing went ahead it could not be disposed of fairly so far as the Applicant was concerned.
6. The Respondent opposed those applications by letter dated 11 December. They pointed out that the Applicant had been professionally represented throughout; the issue of disclosure had been resolved a long time ago; there had been no application to the Tribunal for an Order for specific disclosure until Huggins' letter of 6 December 2002. They were prepared for the hearing on 13 January; witnesses had made themselves available and Counsel was briefed to appear. This was an old case. A new date would take some time to arrange. Further delay would prejudice the Respondent in terms of witness recollection and costs.
7. Having considered those representations a Chairman, on 12 December 2002, refused to order a postponement. Against that Order the Applicant now appeals.
8. Appeals to the EAT against interlocutory Orders of Employment Tribunals or Tribunal Chairmen will only succeed where an error of law is made out. That requires an application of the Wednesbury principles, as Mr Justice Arnold pointed out in Bastick -v- Jones Lane (Turf Accountants) (1979) ICR 779, 782 B-C; approved by the Court of Appeal in Carter -v- Credit Change Ltd [1979] ICR 908, 918F per Lord Justice Stephenson.
9. The stated grounds of appeal, settled by the Applicant's present solicitors, effectively re-run the grounds for the original application to the Employment Tribunal. I accept Mr Bacon's submission that they disclose no error of law; the Chairman, in my judgment, weighed up the factors for and against postponement and reached a conclusion which fell properly within the exercise of his wide discretion. That conclusion applies equally to subsequent revisiting of the postponement question in later correspondence between those solicitors and the Tribunal.
10. Today Mr Buchan raises an entirely new and additional ground of appeal. He contends that this is in fact a personal injury claim; that the EEC Framework Directive 81/391 applies and that under community law there is a requirement that the procedural rules applicable to the High Court must also be applied to the Employment Tribunal. That has not happened; there has been no proper case management of this case; no Order for disclosure; no Order for exchange of witness statements. This is a factor, he submits, which the Tribunal Chairman ought to have, but did not take, into account.
11. There are a number of problems facing Mr Buchan in making that submission. First, this is not a personal injury claim. On 2 January 2003, the Applicant's solicitors notified those acting for the Respondent of their intention to apply to the Tribunal for permission to amend the Originating Application to add a personal injury claim. That application has yet to be determined. Secondly, the Chairman cannot be criticised for failing to consider an argument not raised in the postponement application in relation to a claim not yet before the Employment Tribunal. Thirdly, this is a new point which I shall not entertain in this appeal in accordance with the principles set out in Kumchyk -v- Derby City Council [1978] ICR 1116, recently affirmed by the Court of Appeal in Glennie -v- Independent Magazines (UK) Ltd [1999] IRLR 719.
12. The reality is that this is not an appeal raising any question of law; it is a last desperate attempt on the part of the Applicant to secure an adjournment of the case which, although now over two years old, is in a lamentable state of unpreparedness on her side. She must bear the responsibility for any shortcomings on the part of her advisers, as to which I express no view.
13. The Chairman was entitled, indeed required, to take into account the overriding objective set out at Regulation 10 of the Employment Tribunal (Constitution etc) Regulations 2001; that includes ensuring that cases are dealt with expeditiously and fairly. Fairness extends to both parties in this case, balancing the interests both of the Applicant and Respondent. Expedition means getting on with a case as old as this, rather than adjourning a lengthy hearing for a third time simply on the basis that skilled advisers have failed to get their tackle in order. Mr Buchan accepts that no fault lies with the Respondent, who I might add suggested exchange of witness statements voluntarily and invited the Applicant's previous advisers to apply for an Order for specific disclosure in respect of documents which the Respondent claimed to be confidential.
14. In these circumstances I shall dismiss this appeal. I anticipate that further procedural questions, including the Applicant's application, opposed by the Respondent, to amend the Origination Application, will arise on Monday before the Cardiff Tribunal. Those are matters for that Tribunal, not for me in this appeal.
15. The Respondent, through Mr Bacon, applies for the costs of this appeal under the provisions of Rule 34 of the EAT Rules. He submits that this appeal was wholly without merit and bound to fail, and in these circumstances, that these proceedings are unnecessary. I accept that submission. Mr Buchan has sought to persuade me that his point on the Framework Directive is one of considerable importance; it may be, but it does not arise for determination in this appeal, the point not having been taken at the Employment Tribunal level. In these circumstances, it seems to me this is an appropriate case in which to order costs under Rule 34. I have been told that as a result of a large costs bill submitted to the Applicant by her former solicitors, Withers, she is now impecunious. I have sympathy with that position, but in the light of the Court of Appeal's judgment in Kovacs -v- Queen Mary & Westfield College [2002] ICR 919 I do not feel able to take her means into account when determining the level of the costs Order.
16. Mr Bacon tells me that his brief fee is £1500 to include work done yesterday on this appeal, and that his solicitor puts in a claim for his time, in the sum of £500. Taking a broadbrush approach, it seems to me that the proper level of costs on the Respondent's side of this appeal is £1500 plus VAT and I shall order costs in that sum against the Applicant; those costs to be paid within fourteen days.