United Kingdom Employment Appeal Tribunal

Appeal No. UKEATPA/1819/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 August 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

(1) DR H A ABUSABIB

(2) MRS R M EL-TERAIFI APPELLANTS

MISS G TADDESE RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

Relief from sanctions was given under PD16 and CPR3.9 when evidence in support of a response, but not a draft ET3 response form, was filed in time. The point on diplomatic immunity could not be said to be without merit. Roberts v Carling and Aziz applied.
HIS HONOUR JUDGE McMULLEN QC

Introduction

1.            This is an appeal against the decision of the Deputy Registrar not to grant relief from sanctions in respect of the filing of documentation.  It deals with a problem arising out of the service of proceedings on the Respondents and their status when the relevant events in the case occurred and at stages thereafter.  A number of issues have been resolved by the careful concessions of both Mr Holmes‑Milner, who appears for the Respondents, and Mr Mant, for the Claimant, before me today.

2.            The substantive issue is the finding against the Respondents on 19 November 2010 in their absence of direct discrimination and harassment under the Race Relations Act 1976 in respect of which an order was made of £30,095.39 by way of compensation.  In addition, the Claimant’s complaints of harassment under the Religion or Belief Regulations 2003 were upheld, and an award of £12,992.50 was made.  There was a further award, upholding the Claimant’s claims of harassment under the Sex Discrimination Act 1975, of £25,985, and an award made in respect of the failure to provide written particulars.  In total the Respondents were ordered to pay something like £70,000.

3.            The Respondents sought to raise an application for review, contending that they had not been served with the relevant proceedings.  The parties are a couple, and Mr Ali is, on the papers before me, a diplomat of the Sudanese government assigned either to the Court of St James’s or to the Sudanese mission at the United Nations in New York City.  It is said that they together have diplomatic immunity from suit, including suits in the Employment Tribunal, for the torts alleged in this case by the Claimant their domestic servant.  At the same time a Notice of Appeal was sought to be weighed in the EAT, taking just the diplomatic immunity point.

4.            The concessions to which I have referred include that the appeal that is before me is made timeously, and that the jurisdiction for hearing it, whether it is by way of a review or an application under rule 37 for relief from sanctions, does not really matter.  It is conceded, rightly in my view, that the Deputy Registrar was dealing with an application for relief from sanctions.

5.            The jurisdiction for these applications was set out in a Judgment I gave on in Roberts v Carling UKEAT/0183/09, BAILII: [2009] UKEAT 0183_09_0810 , which Mr Holmes‑Milner relies upon and which is not disputed by Mr Mant.  The jurisdiction for giving relief from sanctions in the EAT is different from that in the Employment Tribunal. That jurisdiction has been the subject of disagreement. The Judgment of the Court of Appeal in Neary v St Albans Girls’ School and Anor UKEAT/0281/08, BAILII: [2009] UKEAT 0281_08_0901, was followed by the Underhill P in the EAT in Thind v Salvesen Logistics UKEAT/0487/09, BAILII: [2010] UKEAT 0487_09_1301.  I note that in Thind the Judgment of the Court of Appeal in Chukwudebelu v Chubb Security Personnel [2008] EWCA Civ 327 was not referred to the President.  But the joint position before me, in the light of Roberts, is that the EAT does have a jurisdiction to grant relief from sanctions and will, where it is helpful to do so, for the reasons I set out in Roberts, apply CPR 3.9.

6.            The Deputy Registrar found that an unless order was not complied with.  The order was for the lodging of documentation necessary for the validation of a Notice of Appeal in the appropriate time.  The hearing before me has constituted a hearing afresh, for evidence has been provided by the Respondents’ solicitor, and he has been tendered for cross‑examination, an invitation that has not been taken up, and so I accept what he says.  The papers and a CD were delivered to the EAT within time, but what was missing was a draft ET3 response form.  I have looked at the file; there is no evidence of the draft ET3.  The unusual aspect of the case is that there was no ET3 in the first instance proceedings; that is the whole point, and so Practice Direction 16 comes into effect, where a draft ET3 should be submitted together with witness evidence.

7.            The Deputy Registrar recited correctly the chronology, but simply noted that there had been failure to comply with an unless order.  In my judgment, she erred in law in failing to provide reasons in respect of the CPR 3.9 ingredients.  She said she was dealing with relief from sanctions and should have looked to CPR3.9 by analogy. Having now heard the explanation, which was that the solicitor thought he had put all the paper in together, and the ET3 came two days later, I accept that explanation.  I drew a distinction in Roberts between the initiation of an appeal and the failure to comply with an order of the EAT while a case is on track. A more generous approach ought to be taken than in those cases rejected for failure to comply with the 42‑day time limit.

8.            The issue before me is whether or not relief from sanctions should be given.  The failure to comply was caused by the Respondents’ legal representative (see CPR3.9(1)(f)).  The trial date is not yet in focus, and for this purpose it is the sifting of a Notice of Appeal long in advance of a hearing at the EAT.  I do not consider that there is likely to be a substantial delay in causing the hearing.  The effect of failure to comply on each party is substantial.  The Claimant is entitled by the order of the Tribunal to £70,000; the Respondents dispute it.

9.            I bear in mind that there has been no trial of the essential issue in the case, which is the diplomatic immunity and the out of time points that the Respondents would seek to raise, as to which the Tribunal found in their favour on one matter.  I also bear in mind that this is a case where the gist of the defence has to be put before the EAT under Practice Direction 16.  The evidence in the case makes the point clearly, both on the merits and everything else.  The addition of an ET3 in those circumstances is less critical than it is at the outset of a Notice of Appeal.  One can read the evidence submitted and see clearly what the issues were. The draft ET3 does not add substantially to what is said within the evidence.  This is a venial error by the solicitor for the Respondents.  Paying attention to the overriding objective and in particular the very substantial sums involved, I consider that it is right to exercise discretion to allow a short period of time so as to enable the draft ET3 to have been validly served on the Registrar.

10.         I have been asked to consider the merits of the draft ET3.  This is a factor where a Notice of Appeal has none (see Sir Christopher Staughton in Aziz [2000] IRLR 111 CA).  The more the argument went on before me this morning, the less convinced I was that it could be said that there is no merit in the case.  Put before me are authorities relating to the diplomatic immunity of persons in the UK (see, for example, P v P (Diplomatic Immunity: Jurisdiction) (1998) 1 FLR 1026, and the Diplomatic Privileges Act 1964, together with, in particular, articles 31 and 40).

Conclusion

11.         Although full arguments have been made by Mr Mant that the diplomatic point cannot assist the Respondents, in my judgment this is a matter requiring further consideration, and I cannot say at this stage that it has no merit, which is the threshold for an Aziz consideration of the matter. I will allow the appeal.