KYMANYWA v LONDON BOROUGH OF HACKNEY [2002] EWCA Civ 1703

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
[2002] EWCA Civ 1703Case No A1/2002/1934Venue Royal Courts of Justice, Strand, London, WC2, Friday, 1 November 2002
Between
KYMANYWAApplicantLONDON BOROUGH OF HACKNEYRespondent
Before
Lord Justice MummeryThe Applicant appeared in person with litigation friend Dr Seray-Wurie who spoke on her behalfThe Respondent was not represented and did not attendDate 1 November 2002

LORD JUSTICE MUMMERY:

This

[1]is an application for permission to appeal against the decision of the Employment Appeal Tribunal on 12 July 2002. The appeal tribunal dismissed the appeal by the applicant against the decision of the Employment Tribunal of 29 March 2001. The Employment Tribunal had refused to review an earlier decision or to grant an adjournment of the review proceedings for further evidence to be given.[2]The trouble had started with the original hearing of the Employment Tribunal on 6 September 2000. The tribunal date had been fixed after a number of adjournments in order to hear a complaint of sex and race discrimination, which the applicant had brought against the London Borough of Hackney. The applicant had been employed from October 1986 as a social worker by Hackney Borough Council. She is a black African. From 13 October 1997 she has been on sick leave, and, as I understand it, is still employed by the council. She suffered from back pain. She made an application for early retirement on medical grounds. Discussions took place about what benefits she would be entitled to on retirement and what the terms of early retirement would be. No agreement has been reached, so she has remained in the council's employment.[3]On 25 September 1998 she started the proceedings for discrimination. In box 3 of the form it is stated - "If a representative is acting for you please give details." In that the applicant had written - "Name to be provided by UNISON in due course." It appears that at a later stage a firm of solicitors did write some letters on behalf of the applicant. There is however, uncertainty as to whether they were her representatives at the date of the hearing fixed for 6 September.[4]What happened then was that the tribunal unanimously decided to dismiss the application in most unsatisfactory circumstances. The applicant had not appeared. So the tribunal clerk rang the solicitors with whom they had had correspondence, Messrs Balogun Kirvan. The tribunal decision of 22 September 2000 states:
"The clerk was told that the solicitors had no instructions from [the applicant] and no longer represented her. A subsequent attempt by the same clerk to contact [the applicant] on the telephone was unsuccessful."
In those circumstances the representative of the council asked for the application to be dismissed. The tribunal said at paragraph 7:
"We have considered the Originating Application and the Notice of Appearance. We have also read the two previous decisions and noted that these proceedings were started as long ago as 25 September 1998. We do not know why [the applicant] is not present nor indeed whether she personally was aware of the hearing dates. However, her solicitors then on record would appear to have been aware that the case was due to start today. In the absence of any application for an adjournment we dismiss the Originating Application pursuant to Rule 9 (3) of the Employment Tribunals Rules of Procedure 1993 as we do not think that [the applicant] can succeed where we have no evidence from her."
The extended reasons containing those paragraphs were sent to the parties on 22 September 2000.[5]The applicant was then advised by Dr Seray-Wurie of the Hackney African Organisation, who has also appeared to represent her today. He initiated an application for a review of that decision on the grounds that she had not received notice of the proceedings and that the decision was made in her absence. Evidence was given by the applicant. The tribunal found that she had instructed the solicitors, Balogun Kirvan, to act on her behalf throughout and that on their representations a number of postponements of the hearing were made. The tribunal referred to a letter which the applicant had herself written to the tribunal offices on 2 June 2000 asking for her case to be listed. She referred in that letter to the solicitors' numerous requests.[6]The tribunal offices wrote on 13 June 2000 to the solicitors stating that a hearing had been directed for three days. On 17 August notice of the hearing fixed to start on 6 September was sent to Balogun Kirvan and to the council. The hearing then took place on 6 September in the circumstances already summarised. The tribunal said that both parties accepted that notice of the hearing sent to solicitors on the record amounted to notification to the client, even though the client had not been so informed. They then said at paragraph 6 of their extended reasons of 29 March 2001:
"The Tribunal file shows that such a notice properly addressed was sent to Balogun Kirvan and the respondents."
The respondents, through their counsel Mr Heath, indicated that they had duly received the notice:
"The notice must be deemed to be properly served when sent by post unless we are satisfied by evidence that it was not in fact received. All we really have today is the letter from Balogun Kirvan dated 18 September 2000. We do not have any evidence from Mr Hatrick who wrote that letter and we are therefore not satisfied on the information before us that the notice of hearing was not in fact received. We also find it odd that a copy of the earlier letter allegedly sent to the Tribunal offices was not provided by Mr Hatrick and we are not satisfied that such a letter was ever sent. As already stated, there is no sign of such a letter in the Tribunal file. If, however, such a letter was sent, in our view Balogun Kirvan should have informed their client prior to coming off record that they intended to take such a step. They certainly should have informed their client that such a letter had been written to the Tribunal offices and they should have sent her a copy of it. We leave to one side the question of whether the solicitors were entitled to determine their retainer in such a way. We also note that [the applicant] did not disinstruct them until after the hearing on 6 September 2000."
[7]The tribunal then referred to an application made by Dr Seray-Wurie for an adjournment, so that he could call Mr Hatrick to give evidence. But as that application had not been made until final submissions and was opposed by the representatives of the council, the application for the adjournment was refused in the interests of finality of litigation.[8]It was in those circumstances that the tribunal unanimously refused the application for review and dismissed the originating application. The originating application remained dismissed.[9]The matter dragged on further because the applicant then sought to appeal to the Employment Appeal Tribunal. Obvious difficulties were in the way of such an appeal because it was an appeal against a decision to refuse a review. Appeals are limited to points of law and the refusal of a review is made in the exercise of a discretion. It is difficult to appeal against the exercise of the discretion without showing that the discretion was plainly wrong in the way it was exercised.[10]When the matter came before the appeal tribunal as a preliminary hearing Mr Recorder Underhill QC allowed the appeal to proceed and made it clear that certain documents would be required. As he said in paragraph 10 of the judgment, a request should be made to the Employment Tribunal for copies of the relevant parts of the file. The reason for that was to clarify what the status of the solicitors was at the time when the Employment Tribunal office sent out notification of the hearing for 6 September 2000.[11]The matter came on for a full hearing before the Employment Appeal Tribunal on 12 July 2002 and the appeal was dismissed on the basis that there was no error of law in the decision of the Employment Tribunal on the review. It appears from a document that Dr Seray-Wurie handed to me during the course of the hearing today that there were before the Employment Appeal Tribunal, as listed in an index, a number of documents stated to have come from the Employment Tribunal file. Unfortunately, those documents have not been inserted in the file which constitutes the appellant's bundle for this appeal. I have not therefore seen them. They have not been supplied to me. It is impossible to determine this application without seeing the contents of the Employment Tribunal file in order to ascertain what the status was of the solicitors in relation to the proceedings brought by the applicant, and what their status was, in particular, at the date when notice of the hearing of 6 September 2000 was sent out.[12]In those circumstances I am unable to determine this application. I therefore adjourn it to be re-fixed. It is not to be re-fixed until there has been lodged with the Civil Appeals Office all the documents, which were obtained from the Employment Tribunal file for the purposes of the hearing in the appeal tribunal. If there is any difficulty in obtaining those documents, then the Civil Appeals Office is directed by me to make direct approaches to the Employment Appeal Tribunal for the entire bundle of documents that were before the Employment Appeal Tribunal when this matter was heard by them on 12 July 2002. I thought I had such documents before me; they would normally have been included in the appeal bundle. They have not been included. I am not able to determine this application because I do not have all the documents necessary to determine it. The matter is adjourned on that basis.[13]I reserve the matter to myself in view of the amount of work already done on the case in preparation for the abortive hearing today.

Order

Application adjourned

Cited in 1 later judgment