United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant
For the Respondent	MISS LUCY BONE (of Counsel) Instructed by: Messrs Hewitsons Solicitors 7 Spencer Parade Northampton NN1 5AB

SUMMARY

Time Limits

Adjournment of appeal hearing. Solicitor-advocate dealing with case not available.

IT1 sent by e-mail. Should time be extended. Should solicitor have checked if e-mail arrived.


 


HIS HONOUR JUDGE ANSELL

1. Our first Decision today is to decide whether this hearing should go ahead. The Order for this hearing was made pursuant to a chambers order by Judge Prophet, having sifted the appeal. It was set down for a two hour hearing, category C, and it was recommended for expedition. That Order is dated 16 September 2004, although it appears to have been sent out on 20 September (that is the date stamp on it), and it arrived at the solicitors for the Respondent's office on 23 September. On 24 September the Respondent's solicitors, who have acted quite properly throughout, immediately sent a fax pointing out the date that was fixed for hearing, which was today's date, was not convenient because Counsel chosen to conduct the case was unavailable, and they requested a postponement of the hearing and gave some alternative dates.
2. There was then a letter of 27 September from Frodshams, coming from Mrs Bramley-Marsh who appeared as the advocate before the Tribunal and indeed whose conduct in sending the e-mail figured in the case, saying that she was unavailable today because she was already appearing in a Liverpool Tribunal. They also gave a list of unavailable dates, said that there was no other representative available to attend and that in the interests of proportionality they would be reluctant to instruct counsel unless absolutely necessary. That letter was copied to Hewitsons by the Tribunal on 29 September.
3. The Deputy-Registrar then considered the matter on 4 October, indicated the matter should remain in the List, and on 6 October Frodshams wrote, enclosing the bundle, saying this

"…we understand that despite written requests from both parties and telephone requests from both parties for a postponement that this will not be agreed Therefore we are disappointed to inform the tribunal that we will simply be relying on written submission due to the Appeal's Tribunal's refusal to consider a reasoned request for postponement agreed by both parties. We confirm we will not be present on Monday as we are attending another case in Liverpool on that date."

It does not appear there was any communication between the respective parties' solicitors last week, or certainly following the order, but today the Respondent has appeared with Counsel; I think not Counsel originally instructed, but Miss Bone who has taken up the mantle at short notice.

4. The Respondent quite clearly has done the right thing. The Appellant has done the wrong thing to the extent that they are not here today and they have not sent anybody along to ask again for the adjournment, although that is to be inferred from the documents last week. Normally we would have decided to proceed today with the hearing, but the fact remains that this case today raises for the first time the important issue of the sending of applications to an Employment Tribunal by e-mail, shortly before the time-limit was due to expire, and the failure to check as to whether that e-mail had arrived until the day after the time-limit had expired In others words they were one day late in the submission of the application and it clearly does have ramifications for the use of e-mail in cases.
5. Therefore it seems to us it is important, if possible, for us to have the fullest possible argument on the subject. We are not suggesting for the moment that Miss Bone would not have, as it were, put the case fairly on her side and drawn our attention to those case for and against the particular point. She is well known to the Tribunal and we could have relied on her to that, but it is an important issue and we feel that we should have, therefore, the best possible representation.
6. Therefore, somewhat unusually, we are going to give one further opportunity and adjourn this hearing, but on the understanding that when the matter comes back the Appellant's solicitors should show cause as to why an Order for wasted costs in respect of today's hearing should not be made. I am not going to make that order today, but we are going to make, effectively, an unless order so the onus is on them to show cause why an Order for Costs should not be made. Unless they can show very good excuse, there must be an Order for Costs wasted by the Respondent and their advisors in coming to the Tribunal today and we again remark that the Respondents behaved properly in their attending before us today.
7. That is the Order that we make. We would also invite both parties to consider the case of Anderton v Clwyd County Council [2002] EWCA Civ 933, and whether any further representations are needed as a result of that authority.