United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADAM BLITZ (The Appellant in Person)
For the Respondent	MR TIMOTHY BROWN (of Counsel)


 


SUMMARY

PRACTICE AND PROCEDURE

Appellate jurisdiction/reasons/Burns-Barke

Time for appealing

It was not just to debar the Respondent for failing to lodge a skeleton for the Registrar's appeal, or lodging its Answer one day late. Expedition of the Claimant's appeal so as to give him preference in a winding-up petition due to be heard would be refused.


 


HIS HONOUR JUDGE McMULLEN QC

Debarment

1. An application has been made today for the debarment of the Respondent from today's proceeding, the sole basis of which is that the Respondent has failed to provide a chronology and to exchange a skeleton argument. Yesterday, the EAT was notified by solicitors for the Respondent that it would be represented today and it appears through Mr Timothy Brown of counsel. He apologises to the EAT for failing to produce a chronology, contrary to PD13. However, he points out that this case was scrambled followed directions given by the President and less than 10 days' notice were given to the parties of the hearing, because this hearing is to do with an application for expedition of the appeal. Mr Brown has told me that the sole argument he wishes to raise is contained within the judgment of the EAT in Slingsby v Griffith Smith Solicitors [2009] UKEAT 0619/07 1002. Slingsby is the same territory as is covered by Mr Blitz, who appears today on his own, having previously been represented, and who will continue to be represented later.
2. It is in the interests of justice that the Respondent be allowed to take part in today's proceeding. There is no prejudice to the Claimant and I am conscious that the material before me is that which is in the minds of both of the parties. I have fully in mind the history of what Mr Blitz contends is non-compliance by the Respondent, and he is in part correct. I have myself at the preliminary hearing noted the Respondent's failure to comply with the orders of Cox J. But this is a case where the Respondent does need to be here and it would be an unjust over-reaction to prevent arguments being raised by the Respondent today. I accept the apology and will exercise discretion.

The Respondent's Answer

3. This is an appeal from the Registrar's decision about the Respondent's Answer. I have considered fully the history of the relationship between the Claimant and the Respondent and their respective relationships with the Employment Tribunal and the Employment Appeal Tribunal. On numerous occasions, the Respondent has failed to do what it was required to do by orders of the Employment Tribunal, by orders of this court, and by the Practice Directions. Mr Blitz is outraged that the Registrar allowed the lodgement of the Respondent's Answer when it came on. The 14-day deadline expired at 4.00pm; the Respondent's Answer was lodged sometime after 5.00pm. For the purposes of the EAT that is the next day. As a matter of practice it was a day late.
4. It contains nothing; the Respondent's Answer is simply a vehicle for the Respondent to have a voice in these proceedings, it contains nothing controversial for it seeks to rely upon the findings of the Employment Tribunal, which were against the Claimant. The Claimant contends that the history of non-compliance ought to have persuaded the Registrar not to exercise her discretion. Both parties agree that the law on this subject is contained in the judgment of His Honour Judge Burke QC sitting alone in Slingsby in paragraphs 22, 23 and 27:

"22. Having regard to:

(1) The difference in nature between the institution of an appeal and the lodging of an Answer to it, to which I have referred.

(2) The fact that, no doubt so that the prospective Appellant has ample time in which to decide whether or not to initiate further proceedings by way of appeal, the unusually lengthy period of 42 days is provided by the Rules for such institution, whereas the Practice Direction provides only 14 days for a Respondent to deliver his Answer.

(3) The fact that in the absence of an Answer and of the presence of a Respondent to resist the Appellant's arguments in favour of the appeal (assuming that the Respondent has not chosen not to resist the appeal, for which special provision is made by Rule 6(4)) there must be a risk that a judgment of the Employment Tribunal, which does not contain any error of law, may be erroneously overturned by an appeal argued only on one side.

I conclude that the strict principles, which apply to the grant of an extension of time for the institution of an appeal, do not apply to the grant of an extension of time for the delivery of an Answer.

23. That is, of course, not to say that the time for delivery of an Answer should be extended lightly or as a matter of routine; general discretionary principles apply, including the need to consider the length of any delay and the existence and nature of any prejudice to the other party.

27. On an application of such a discretion for the facts of this case, I have no doubt that the Answer, lodged one day out of time, should be permitted to stand and the time should be extended to allow it to have effect. The delay was minimal; it was immediately recognised and rectified; it has not been suggested that Mr Slingsby has suffered any prejudice by reason of that delay. Although the explanation proffered for that delay necessarily involves what Mr Green correctly accepted was a 'schoolboy howler' on the part of his instructing solicitors, who had appropriately diarised the importance of delivering the Respondent's Answer on time yet failed to achieve it, the inadequacy of the explanation could not in justice have the effect, applying ordinary discretionary principles, of depriving the Respondents of the opportunity to resist Mr Slingsby's appeal."

5. I approach this case in the light of that helpful judgment. I agree with Judge Burke that the approach to an extension of time differs in this court as between acceptance of a late Notice of Appeal and acceptance of a Respondent's Answer. That may appear to a litigant-in-person to be unfair. Let me explain why it is not. The point about a Notice of Appeal is that, as at the date the Tribunal gives its judgment, the parties are entitled to say that the case is over, subject to a 42-day period for lodging an appeal, and the successful party is entitled to breathe easy after the 42nd day, and to think that this case is over; after all the parties have had a full hearing.
6. However, once a case gets into the appeal machinery, as it did in this case, by orders of Cox J and by the preliminary hearing, which I presided over, slightly different considerations apply. There is a more relaxed regime providing for the relief of sanctions under rule 37, which we apply in the EAT (see my judgment in Roberts v Carling UKEAT/0183/09/). So the rigour of the 42-day rule for instituting a Notice of Appeal does not apply to the internal directions once a case is running.
7. Mr Brown is correct when he submits that this case cries out for representation. As we noted at the preliminary hearing, this case is most unusual, for it was the grant effectively of an injunction; that is a continuation of contract order, without oral evidence. Without further evidence at the oral hearing, the order was discharged and the claim was dismissed. This is an unusual case. It does require some input from the Respondent to assist this Tribunal. It was for that reason that Cox J directed that the Respondent put written submissions into the preliminary hearing, and for which failure we criticised the Respondent.
8. I am again critical of this Respondent for its conduct of these proceedings, but the question is justice, there is no prejudice to the Claimant in the late lodging of the Respondent's Answer. A litigant-in-person may well think that there is prejudice to him because he now has to deal with Mr Brown, whereas he would have a free run. But prejudice in the legal sense relates to something over and above the ability of a party to get before a court. There is no prejudice, which has been shown to me by Mr Blitz, he will have to run this case himself and now have the Respondent in it.
9. It is in the interests of justice that the Respondent be allowed the extension of time of one day to lodge its Respondent's Answer, and I will exercise my discretion in its favour. To adopt Judge Burke QC, "a schoolboy howler" has been committed by the solicitors in this case in failing to recognise that the doors of the EAT shut at 4.00pm and not at midnight. But it is a venial error and the facts of this case require the Respondent to have the opportunity to deal with the issues, for the consequences to it, if it is not allowed in, are extremely serious. So I will dismiss the appeal from the Registrar on that point.

Expedition

10. The third part of today's proceedings concerns what is really the substance; that is whether the EAT should order expedition of the appeal. As will be recalled, I ordered a preliminary hearing with members. We were not assisted by any submissions from the Respondent and, while being critical of that, the fact is that there was nothing to gainsay the Claimant's argument in the absence of directed submissions of the Respondent. The threshold for a full hearing is that there are reasonable prospects of success, but in this case it must be tempered by the fact that Cox J did not send it immediately to a full hearing, and we sent it to a full hearing noting that we would have been assisted by the Respondent's submissions. It does not mean that there is an overwhelming case that the Claimant will succeed at the EAT on a full hearing.
11. The importance of that to Mr Blitz is as follows: on 15 or 16 December 2010, a petition is being heard in the Companies Court at the instance of HMRC. If that goes ahead, it will be opposed. If it is granted and there is winding up, there will be preferential treatment for employees who are given certain rights on insolvency: Employment Rights Act 1996 Part XII in terms of certain protections for wages owed and so on. What the Claimant wants to do is to ensure that he is regarded as an employee. The first difficulty is as a matter of law. Authority is against him on that point, and while a continuation of contract order may apply, it does not necessarily mean he is to be regarded for all purposes as an employee (see Dowling v Ilic UKEAT/0836/03 Burton P).
12. The second problem is one of practicality. Mr Blitz is to be represented by a solicitor advocate, who has given his available dates between now and next year, but in the window, which opens between now and the petition, he has made himself available on only 8 of the 23 dates. I do not know what availability has been canvassed with Mr Brown's team. There are major difficulties in expediting a case such as this. As Mr Blitz makes clear, the stakes are high, a major issue of law has to be determined, it arises out of a 7-day hearing at an Employment Tribunal, and it involves unusual jurisdictions, interim relief, and PIDA. However, as the Registrar pointed out when she refused expedition, the EAT has a long queue of customers. Only recently, special measures were taken to deal with the increasing number of appeals. If a case is put into the list as a matter of expedition, effectively a day's sift work will not be done by a Judge.
13. In a proper case, expedition can be ordered. In my judgment, this is not one. I do not accept the correctness of Mr Blitz's position, which is that he seeks to get ahead of other creditors of the company in case there is a winding up. In other words, what he wants is to get back into the list of employees so that the company will be indebted to him and put him as a higher-ranking creditor than he otherwise would be. All of this is entirely hypothetical, indeed building one hypothesis upon another.
14. Let us just wind forward. A hearing of this appeal, let us say, in the shortest practicable time, takes place on 1 December. It requires issues to be determined by a three-person Tribunal, a judgment to be made. The relief sought is particular. As Mr Brown submits, this is rather like an injunction. It would be most unusual for a court to re-impose an injunction, which was discharged 10 months earlier, if that is the appropriate analogy. The Employment Tribunal has determined that the Claimant has no case and that goes for his interim relief too. So it is most unlikely that the EAT would make a judgment on the day, or would make a judgment in the terms the Claimant seeks. Far more likely if he wins is that the matter be remitted to an Employment Tribunal, which is the principal relief in this case.
15. I bear in mind that at one stage the Claimant was seeking expedition because of his own personal circumstances. He contends that it is more difficult to get a job while he is still without a contract, and I accept that, indeed Mr Brown did not dispute it. Those in the labour market who are in a job or covered by an Employment Tribunal order are in a stronger position. But that applies to everybody who comes before us.
16. I also accept that there has been a change in the circumstances, because when I ordered and gave directions in this case, the expedition previously sought was not sought. The change has been the petition by the Revenue, and that gives the Claimant the opportunity to say a new order should be made. But, again, in the recession, many cases come before tribunals where the business has gone into liquidation in between dismissal and the date of the hearing. These are tragic circumstances facing the individual former employees and the businesses themselves, but they are sadly a fact of life.
17. The Registrar considered relevant factors when she refused expedition, the matter comes before me to consider afresh. If it were not a fresh hearing I would uphold the Registrar as she committed no error. It is a fresh hearing, as I have heard argument now from both sides, and considered most carefully the factual circumstances Mr Blitz puts in front of me, invoking, as he does, other people interested in this jurisdiction and a clear answer. I would come to the same conclusion as she did, and for those reasons I will dismiss the appeal.

Costs

18. An application has been made by the Claimant for costs. The basis would have to be that there was unreasonable conduct in defending the proceedings. That cannot work; the Claimant has here failed in all his applications today and no costs order should be made. I have not seen a schedule of the litigant-in-person expenses or costs of the Claimant. But as a matter of principle, the Claimant having lost, it would be extraordinary to award him costs. There has been a proper hearing and he has failed. There has been no unreasonable conduct such as would attract the condign criticism in rule 34.
19. An application has been made under the same rule by the Respondent for its costs. A schedule was not served on the Claimant yesterday as it ought to have been, he has been given it today. I have not called upon him to respond; it is in the sum of £1,044. Mr Brown accepts that there have been errors and failures by the Respondent, and it might appear inequitable to award costs in its favour. He is right; it does appear to me to be inequitable. This is a jurisdiction where there is a challenge to the exercise of discretion by the Registrar. The reasonable prospect of success test (for a full hearing) does not arise in this jurisdiction; it is an open discretion under rule 37. I have never seen a case seeking expedition ahead of a winding-up petition. I have given my views on it, but no authority has been put in front of me, it was an open matter. I do not consider it was misconceived to advance that argument.
20. As to the Respondent's Answer, it is open to a party dissatisfied with the Registrar's order, to appeal. I have found against him, but that does not mean that it was wholly unreasonable or misconceived for him to do so. So I will not award costs against him.
21. I do however indicate that Mr Blitz should think most carefully, since he has told me he is going to weigh proceedings against the Respondent's solicitor. He is experienced in litigations: see the judgments of HHJ Ansell and Burton J respectively in 0306/09 and UKEAT/0259/07. Before making any further applications he should take advice from his solicitor.