United Kingdom Employment Appeal Tribunal

SUMMARY PRACTICE AND PROCEDURE Appellate jurisdiction/reasons/Burns-Barke Bias, misconduct and procedural irregularity Rule 37 gives a general discretion to extend time for the doing of any act in the EAT, whether the deadline has passed or not. In deciding whether to grant relief against an unless order, or when a party is in breach of an order, practice direction or rule, in particular when the time limit for complying has expired, the EAT will apply principles analogous to those applied in the High Court, by reference to the guidance in CPR 3.9 for relief from sanctions. This is envisaged by PD1.8 which permits resort to the CPR if appropriate to the unique constitution of the EAT.
 
HIS HONOUR JUDGE McMULLEN QC
1. These are the reasons, regrettably delayed by poor administration, for the order I made on 26 August 2009. This case concerns the resort of the Employment Appeal Tribunal into the CPR for procedural points. The underlying case is a successful claim made by Ms Carling, the Claimant, against her employer Ms Roberts, the Respondent, in proceedings for sex discrimination heard at the Truro Employment Tribunal under the chairmanship of Employment Judge Griffiths and registered with reasons on 11 February 2009.
2. The Respondent appealed against the judgment and the papers came before HHJ Serota QC on 28 April 2009. He decided under Rule 3(7) that substantive points raised by the Respondent had no reasonable prospect of success, but that a procedural claim by her, the apparent bias point, should go forward to a preliminary hearing. The order he issued does not say so, but it is common ground that it relates solely to the apparent bias point. It contained an unless order. In default of the Respondent filing an affidavit giving details of the alleged bias the appeal would be dismissed, that is the remaining part of the appeal relating to apparent bias. By the deadline on 12 May 2009 no affidavit had been received.
3. On 13 May 2009 the Case Manager issued what is regarded as a reminder letter saying:

"We have received no affidavit as yet; failure to file an affidavit within the stipulated time limit could result in the appeal being struck out."

Seven days were given for this. On 18 May 2009 an application in respect of Rule 3, which would automatically trigger a hearing under Rule 3(10) on the substantive points, an application for extension of time and the affidavit sought were all filed. Since these arrived after 4.00pm on 18 May 2009 they were deemed to be lodged the next day; see EAT Practice Direction 1.8.2.
4. A carousel of submissions by the Claimant and the Respondent followed, together with an unfortunate series of administrative errors and orders made by the EAT for which the Registrar apologised. The outcome was that the Registrar determined that the affidavit had not been served in time, no explanation satisfying her had been given, and the application for an extension of time was refused.
Procedural appeal
5. The precise vehicle for the papers being placed before me is unimportant. It is either an application for a review of the Registrar's procedural decision, an application for relief from sanctions, or an appeal against the Registrar's decision. If the first or the second, she has referred the papers to me under rule 20, and if the third they are properly before me under rule 21. In any event I have the advantage of receiving full submissions from both parties who are legally represented. In accordance with the overriding objective, acting proportionately in relation to the dispute here, I will determine the issue on the papers. The simple issue is whether the Respondent should be allowed to rely on an affidavit of apparent bias. The way to resolve that issue is through an examination of the procedural rules.
6. The overriding objective applies throughout this case. An interim application can be made under Rule 19 which can be disposed of under Rule 20 by the Registrar or a judge. An appeal from the Registrar lies within five days to a judge. By Rule 37(1) it is provided:

"The time prescribed by these rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) ... and the date appointed for any purpose may be altered, by order of the Tribunal."

An application for an extension of time is treated as an interim application by Rule 37(3). There is no separate provision as there is in CPR 3.8 and 3.9 for relief from sanctions which includes the following:

"3.9(1) On an application for relief from any sanction imposed for a failure to comply with any rules, practice direction or court order the court will consider all the circumstances including- (a) the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol; (f) whether the failure to comply was caused by the party or his legal representative; (g) whether the trial date or the likely trial date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; and (i) the effect which the granting of relief would have on each party.

(2) An application for relief must be supported by evidence.'

7. There is no specific rule dealing with unless orders but I disagree with the submission of the Respondent that there is no power to make them. In Chukwudebelu v Chubb Security Personnel Ltd [2008] EWCA Civ 327 I made an order requiring a party to provide further information within 14 days, "and in default of such lodgement and service the appeal be dismissed". That order was directed to two grounds of appeal with which I was concerned. On appeal to the Court of Appeal my order was upheld and those grounds were held to be properly dismissed when the Claimant failed to comply. The power to make an unless order was specifically approved by Maurice Kay LJ, with whom Keene LJ agreed. Pill LJ, in a reasoned judgment, agreeing with Maurice Kay LJ, made clear that before imposing an unless order the court should have regard to the conditions set out in Marcan Shipping (London) Ltd v Kefalas & Another [2007] EWCA Civ 463. He said:

"… An unless order takes effect if it is not complied with. It does not require a further order addressed to the party against whom the order was made. When HHJ Reid in his order confirmed the strikeout he was doing no more than that. The effect of an unless order was considered in Marcan Shipping (London) Ltd v Kefalas & Another [2007] EWCA Civ 463, 1 WLR 1864. I mention it not because it has any influence on the outcome of this case, otherwise it would have been ventilated in the course of argument, but so that the circumstances in which an unless order should be made and the effect of it are I would hope better understood. Moore-Bick LJ stated at paragraph 36:

'… before making conditional orders, particularly orders for the striking out of statements of case for the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate to all the circumstances of the case. Of course it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of claim or dismissing the claim or counterclaim is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified. I find it difficult to imagine circumstances in which such an order could properly be made for what were described in Keen Phillips v Field as good housekeeping purposes'."

8. In the EAT, judges have case management over new Notices of Appeal which meet the elementary procedural requirements under Rule 3. Standard directions are given as in this case sending it to a preliminary hearing. Most of the standard directions contain a date for compliance, but they do not contain a default order. So far as is relevant to the present proceedings, HHJ Serota QC imposed the default order in respect of the allegation of apparent bias. It is clear from Chukwudebelu that he had power to do so, provided he had in mind the observations in Marcan.
9. I have no doubt he did. Allegations of bias were noted by Rimer J in London Borough of Hackney and Others v Sagnia [2005] UKEAT/0600/03 to be on the increase. On behalf of the EAT he said this:

"… Allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency. They are most commonly made by litigants in person, often with little or nothing by way of tangible support for the complaint, which on analysis commonly amounts to no more than the deployment of the fallacious proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased. Our experience is that bias allegations based on complaints that the employment tribunal approached the appellant's case with a closed mind, having already pre-determined the matter against the appellant, have a low success rate. This is for the obvious reason that a tribunal cannot form a concluded view on the issues until it has heard all the evidence and the argument and so it will be a rare case in which a tribunal will at any earlier stage make any utterances which either side can rationally regard as the outward expression of some pre-judgment of the case."

10. Five years later, and now from the much broader standpoint of the Court of Appeal, Rimer LJ in Bascetta and Another v Abbey National Plc [2009] EWCA Civ 840 returned to this matter in paragraph 11 where he said this:

"In my own experience of appeals to the Appeal Tribunal, ... vexatious allegations of bias are frequently raised by losing litigants before employment tribunals."

11. It is because of that growing tendency that the standard direction is modelled upon a passage in the Practice Direction paragraph 11. A bespoke approach is to be taken to such allegations and unique among the orders made it carries with it the warning of costs being awarded if the allegation is unsuccessful. PD11 is itself based upon a judgment of Lindsay P and Members in Facey v Midas Retail Security and Another [2000] ICR 287 which first set out the procedure in preparation for, and then at the hearing of, allegations of bias against an employment tribunal.
12. The reason why successive Presidents Lindsay, Burton, Elias and Underhill JJ have retained that approach in the Practice Directions they have issued is clear. Employment judges and lay members are now required to take the judicial oath. Behaving unfairly towards a party is contrary to that oath. Such allegations are serious and are required by the Practice Direction to be supported by particulars of the allegation and sworn evidence by the party making them, upon which they can be cross-examined and written statements as appropriate by their representatives. This in turn may trigger a request to the employment judge and lay members for their comments, and a right for to the Respondent to submit evidence.
13. The consequences of a successful appeal on the ground of apparent bias are generally the setting aside of the judgment as a whole. In a case such as the present, where the judge on the sift disposed of the substantive complaints arising in the appeal under Rule 3, and allowed the apparent bias point to be further tested, all of the findings on the substantive points would likely be set aside if the apparent bias point succeeds. Thus the allegation is serious and so is the consequence.
14. Litigation involves stress and inconvenience to the parties and to their witnesses. On appeal this is a drier exercise than a first-instance hearing and generally the Employment Tribunal is freed of any further responsibility, except of course if the EAT asks it further questions. However, when an allegation of apparent bias is made, the members of the Employment Tribunal, and such witnesses as the Respondent may wish to invoke, are all dragged back into the proceedings.
15. In my view, all of those circumstances fit the preconditions identified by Pill LJ in Chukwudbelu as arising from Marcan.
Relief from sanctions
16. It follows that when an unless order has not been complied with, the sanction, if it is dismissal of that ground of appeal, or the whole appeal, applies automatically without further order. The question is whether that leaves the party without any redress. When that happens in the civil court, CPR 3.8-9 might come to the rescue. I accept the distinction submitted by the Respondent between an application for an extension of time, which is the appropriate term when the time has not yet expired, and an application for relief from sanctions when it has.
17. Yet under Rule 37 there is no such distinction. This is the rule which is utilised by the Registrar mainly when considering whether to exercise discretion to allow a Notice of Appeal lodged more than 42 days after the relevant judgment. A considerable jurisprudence has grown up, indicating the circumstances in which the discretion can properly be exercised. See Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111, United Arab Emirates v Abdelghafar and Another [1995] ICR 65, and Jurkoska v HLMAD Ltd [2008] ICR 841 and Westmoreland v Renault UK Ltd [2009] UKEAT/1571/08. But Rule 37 is available in all cases, and is exercised in accordance with principle.
18. Relief from sanctions is a jurisdiction now provided for in the employment tribunals following the judgment of HHJ Peter Clark in Neary v St Albans Girls' School & Another [2009] UKEAT/0281/08. It was felt necessary to interpret the rules to allow that discretion so as to bring the employment tribunals in line with the CPR. As far as I am aware, this has not been explicitly introduced into the EAT and I consider it is now appropriate to do so.
19. Rule 37 is broad enough to encompass a decision made to relieve a party of adverse sanctions after the event. There is no need to invent criteria upon which the discretion would be exercised for these are readily apparent by reference to CPR 3.9. In dealing with the EAT's discretion in Chukwudebelu the Court of Appeal invoked Marcan. Marcan is a decision on CPR 3.9 and is held to be relevant to the EAT's jurisdiction. This is expressly envisaged by PD1.8 which permits resort to the CPR if appropriate to the unique constitution of the EAT. It is now clear that in deciding whether to grant relief against an unless order, or when a party is in breach of an order, practice direction or rule, in particular when the time limit for complying with such has expired, the EAT will apply principles analogous to those applied in the High Court by reference to the guidance in CPR 3.9..
Application to this case
20. I would allow this application/appeal in respect of the application for an extension of time simply because the Case Manager on 13 May 2009 set up a legitimate expectation that, provided the material were provided within a seven-day timescale, there would be no difficulty. That is a separate fairness ground. However I will look more widely.
21. I hold that the interests of justice require an extension of time be given since the effect of not so doing is to deprive the Respondent of any kind of appeal. The application for relief was made promptly. There was no intentional failure to comply. The explanation was good. The Respondent has complied with other rules. The failure to comply with the order was caused by the Respondent's legal representative, but this should not be held against her. There is no delay in the appeal hearing date. The balance as between the effect of failure to comply and granting relief is firmly in favour of the Respondent. If the Respondent is not given relief, the Claimant will have a windfall at the EAT. Allegations have been made against judicial officers which ought to be dealt with by the EAT in accordance with PD11. In short I accept most of the submissions of the Respondent on this.
22. In my judgment the Registrar was wrong to be guided by the rules relating to the out of time presentation of a Notice of Appeal when the correct focus is upon an application for relief from the sanction which would otherwise apply when an appeal is already in the system, as to which CPR 3.9 is the appropriate touchstone.
23. The application and/or appeal are allowed.
24. Given the passage of time, I see no utility in holding a Rule 3(10) hearing on the substantive points which in my view are affected if the apparent bias point succeeds. Without expressing a view of the merits, I direct that all points will go to a preliminary hearing but HHJ Seorta QC's order otherwise applies as apt. The Employment Judge and members will be asked for their comments on para 1 of the Notice of Appeal.