Mr R M Surtees v Debenhams Retail Ltd (in Administration): 1401559/2018
JUDGMENT
The claim is struck out.REASONS
[1]By a letter dated 11 January 2021 the Tribunal gave the Claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because it has not been actively pursued.[2]The Claimant has failed to make sufficient representations in writing explaining why this should not be done or to request a hearing. The claim is therefore struck out.[1]The Claimant has applied for a reconsideration of the Judgment dated 26 May 2021 which was sent to the parties on 17 June 2021. The grounds are set out in his application of 15 June 2021.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit.[3]Under rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.[4]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so. The earlier case law suggested that the ‘interests of justice’ ground should be construed restrictively. The Employment Appeal Tribunal in Trimble-vSupertravel Ltd [1982] ICR 440 decided that, if a matter had been ventilated and argued at the hearing, any error of law fell to be corrected on appeal and not by review. In addition, in Fforde-v-Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. More recent case law has suggested that the test should not be construed as restrictively as it was prior to the introduction of the overriding objective (which is now set out in rule 2) in order to ensure that cases are dealt with fairly and justly. As confirmed in Williams-v-Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the ‘interests of justice’ ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council-v-Marsden [2010] IRLR 743, the EAT stated that the requirement to deal with cases justly included the need for there to be finality in litigation, which was in the interest of both parties.[5]The Claimant asserts, amongst other things in his letter, that;a. He is not interested in an out of court settlement;b. The automatic stay “is irrelevant to these proceedings”;c. It is his ‘right’ to have a final hearing and a determination on the facts.[6]The point made in (a) is noted. It is any litigant’s right not to compromise their claims.[7]The issue raised in (b) is central to the rationale for the Judgment striking out the claim. The position was made clear to the Claimant in correspondence on 12 June and 2 October 2020, 11 January, 1 April and 26 May 2021. The history of the Respondent’s insolvency appears to have been as follows;a. Proceedings were commenced against ‘Debenhams plc’;b. It responded as ‘Debenhams Retails plc’ (Company No. NF003048) which was the name applied thereafter (see the Order of 7 August 2018);c. The Respondent de-registered prom a plc to a private limited company on 28 March 2019 according to Shoosmiths LLP’s letter of 30 April 2020, although the Company’s House data suggests an earlier date (30 April 2012). That change clearly had not been notified to Employment Judge Gray on 10 July 2019 when he conducted the Preliminary Hearing on that date;d. The Respondent then went into Administration and the President issued a Case Management Order on 29 June 2020 requiring all cases against Debenhams to be combined and managed in accordance with case management directions from Birmingham. This claim, predating the Administration, was obviously not treated as part of that multiple. It was very different from the redundancy claims arising out of Debenhams’ collapse;e. The various Debenhams named companies, including the Respondent, were brought under one business with the changed name of ‘Department Stores Realisations Ltd’ (Company No. 00083395). That Company was in Administration from 9 April 2020 and remains as such.[8]The effect of Schedule B1 paragraph 43 (6) and 44 (1), (2) and (4) of the Insolvency Acy 1986 is to prohibit proceedings against a corporate body which is in Administration unless a claimant has either obtained permission of the Court or the Administrator to proceed. No court order has been referred to the Tribunal and it is clear that the Administrators have not given permission (see the letter from Harrison Rickerbys of 13 August 2020). The Tribunal is a creature of state. It does not have power to act where prohibited to do so by statute.[9]As to (c), it will have undoubtedly have been frustrating and disappointing for the Claimant to have lost the final hearing listed in March 2020 as a result of the pandemic and then to have faced Debenhams’ collapse but, for the reasons sated above, he is not ‘entitled’ to a hearing on the merits of his claim for the reasons given above.[10]Accordingly, the application for reconsideration pursuant to rule 72 (1) is refused because there is no reasonable prospect of the Judgment being varied or revoked.