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United Kingdom Employment Appeal Tribunal

You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gillingham Football Club & Anor v McCammon (Practice and Procedure : Postponement or stay) [2011] UKEAT 0625_11_0812 (08 December 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0625_11_0812.html
Cite as: [2011] UKEAT 0625_11_0812, [2011] UKEAT 625_11_812

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Appeal Nos. UKEAT/0625/11/RN

UKEAT/0626/11/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 8 December 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

(1) GILLINGHAM FOOTBALL CLUB

(2) MR P SCALLY APPELLANTS

MR M McCAMMON RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants

MR MICHAEL DUGGAN

(of Counsel)

Instructed by:

Bolt Burdon Solicitors

Providence House

Providence Place

London

N1 0NT

For the Respondent

MR RAD KOHANZAD

(of Counsel)

Instructed by:

VLS Solicitors

Gibson House

800 High Road

London

N17 9DH

SUMMARY

PRACTICE AND PROCEDURE – Postponement or stay

The four decisions of Employment Judges to order, and to refuse to postpone, a 5 day hearing were set aside. The Employment Judges took account of an incorrect factor, holding that the Appellants had agreed the dates when they had not. On the parties’ agreement that the EAT should now decide the matter, on the full material today, the application for a postponement was allowed. Costs awarded to the Respondent under Employment Tribunal rule 40(1) and EAT rule 34A(2)(c) as the postponement had been caused by the Appellants.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about an application to postpone a five day hearing scheduled for 15 December at Ashford, Kent. It was the subject of four separate decisions. I will refer to the parties as the Claimant and the Respondents, who are Gillingham Football Club (“the Club”) and its Chairman, Mr Paul Scally. The parties are represented respectively by Mr Michael Duggan and Mr Rad Kohanzad.

Introduction

2. It arises out of an appeal by Mr Scally, and effectively the Club, against orders that the hearing would take place next week. The appeal is made in form against two orders, or maybe three, but they are all focused on one issue which is the listing of this case. The Respondents appealed. The papers came before HHJ Peter Clark. He decided that this was a matter of discretion, the relevant materials were available to the respective judges, and saw no reasonable prospect of success.

3. Yesterday, at an expedited hearing, I heard Mr Duggan and considered this matter should go to a full hearing because this building closes today and because of the imminence of the trial next week and, the departure of Mr Scally for New York from Dubai, on Saturday. The only practical date is today. So I invited the parties to use their best endeavours to try and get this case together. Neither party has suffered from that. Indeed, I have had exemplary written and oral arguments from both counsel. The parties have done remarkably well to scramble for this hearing today.

The decision

4. The decisions are contained in a case management direction given by Employment Judge Vowles on 28 July 2011, where the Claimant was represented by Mr Owolabi, who is a paralegal in the Claimant’s solicitors’ and who has conducted this matter and, indeed, is here today, and Mr Naran De Silva represented both of the Respondents. The decisions made at that hearing were sent on 3 August 2011. It provoked an application on 18 August for a postponement and that generated a response by Employment Judge Vowles, dated 26 August 2011, in the following terms:

“Employment Judge Vowles has considered your request to postpone the hearing and has refused it because: The date of hearing was agreed by the Respondent’s counsel at the Hearing on 28/7/11. The list of available dates is extensive and unreasonable. The case remains listed for 15 to 21 December 2001.”

5. It should be noted that the CMD order has within it the opportunity for the parties to apply to vary the terms of the order. Judge Vowles’ refusal generated a second application. This came before Employment Judge Druce on the papers, who:

“[…] refused it because the details of the booking should have been made available for the Case Management Discussion.

The case remains listed […]”

6. That generated a third application which came back before Employment Judge Vowles, who said the following:

“‘The Respondent’s further application for a postponement is refused. It has already been refused on two previous occasions. The notice of Case Management Discussion sent to the parties on 8 July 2011 made clear that they must be able to discuss the fixing of a date for the Hearing and must know any dates to avoid. No such dates were notified at the Case Management Discussion on 28 July 2011. The Claimant has previously objected to an earlier application and indicated its own difficulties if the date was changed. The Tribunal is not preventing the 2nd Respondent from attending the Hearing. It is entirely a matter for him to decide whether to attend.’”

7. The case is due to be heard next week.

The facts

8. The Claimant is a professional footballer who has been dismissed by the League Two Club, whose Chairman and key figure in the claim form is Mr Scally. The claim is of unfair dismissal and race discrimination. The claim was entered on 29 April 2011. As for Mr Scally, he booked a holiday of a lifetime with his young family on 27 September 2010. The incidents relevant to the claim occurred after that.

9. Final confirmation was received by Mr Scally as to his trip on 11 June 2011, requiring him and his family to fly to New York from Dubai where he lives. The trip is from 10 December to 2 January. In response to the claim form in which both Mr Scally and the Club appear in the box marked Respondent, the grounds of resistance are made only by the Club. I accept Mr Duggan’s contention that there was an issue as to whether Mr Scally was himself a Respondent. As is proper in a long and complicated discrimination case, a CMD was ordered.

10. The notice was sent on 8 July 2011 to solicitors representing the Club and the Claimant. The Club is cited as the Respondent. The notice includes notes that “you should come with Hearing dates and dates to avoid, having canvassed those with your witnesses and legal representatives”. As Mr Duggan engagingly says, “woe betide a party who does not”.

11. The outcome of the CMD was the fixing of the dates. The problem which arose was apparent to solicitors for both parties, for the Claimant within days sought to vacate the CMD which, by that notice, had been scheduled for 28 July 2011. Very quickly agreement to that proposition was advanced by the Club solicitors and, by about 15 July 2011, I can well understand both solicitors feeling confident that they had achieved a postponement of the CMD.

12. In the late afternoon of 27 July 2011, the only response to that unopposed application was received by the solicitors. At that stage, counsel had not been booked. Mr De Silva, then counsel in the case, did not have it in his diary. It was put in his diary and he attended. Both solicitors were very surprised that the Tribunal had taken the step it did. As both counsel accept before me, that is the responsibility of the Tribunal. Just because parties put forward an unopposed or a joint application does not mean that it will be acceded to, and no criticism can be made of the judge for deciding to have a CMD.

13. At that time, I find that Mr Scally was not a party. That is plain from the discussion as to whether he should be taken out and from the notice sent to him. The clear finding by the judge is that on that date, Mr Scally became a party. On that date he was not aware of the December hearing and had not provided any dates to avoid. I accept from Mr Kohanzad that he is a key player, and whether he is a party or not, it simply means he would be there. Nevertheless, Judge Vowles made the specific point that by making him a party, he was liable to a substantial remedy, should any of the discrimination points succeed.

14. The date was imposed on the parties. Counsel who was there knew that he himself was available for the December hearing, but he told the judge that he did not have dates for Mr Scally and Mr Scally was not contacted or contactable that day. Counsel asked for a further seven days in which to clarify the matter but that was refused. The judge decided himself on this date, without the express agreement of the parties. Mr Kohanzad realistically accepts that that is what occurred.

15. The problem is that when the matter came back before Judge Vowles on 26 August 2011, he recorded that the Respondent had agreed. That is one of two reasons the judge gave for refusing the application. It certainly was the judge’s view on that date and he had read the CMD order, which records the same. As Mr Kohanzad concedes, that is not the case. There was no agreement on behalf of Mr Scally, or indeed on behalf of the Club, as to the five day fixture in December.

16. In the course of very extensive and measured grounds of application, the issue of the unavailable dates as to which there were a lot, was dropped, the Respondent accepting that it would change counsel instructed, in order to be available. The second application was turned down by Judge Druce who had all of the material before him, since it is provided as background. The third application was turned down by Judge Vowles as I have said.

17. The criticism that he makes is that the parties did not come with a date for the hearing and counsel ought to have known the dates to avoid. He also makes the comment, which is described as being an expression of his irritation, that it is entirely a matter for Mr Scally to decide whether to attend. That, in my judgement, is a little unfair. It is, of course, open to him not to join his family or to cancel their holiday and to go to Ashford instead. But it is not really a matter of choice for him, given that he is now a party and that he has the exposure which Judge Vowles identified. He is, in any event, as Chairman of the Club, the principal vehicle for its case on unfair dismissal.