Obasa v London Borough Of Islington [2004] EWCA Civ 1237

Case No A1/2003/1577[2004] EWCA Civ 1237
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 22 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALL
LORD JUSTICE HOOPER
Between
OLUBUKUNOLA OBASAAppellant-v-
Between
LONDON BOROUGH OF ISLINGTONRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The APPELLANT appeared in person for in personMR T BRENNAN (instructed by London Borough of Islington Legal Services) appeared for Respondent
J U D G M E N T

LORD JUSTICE HOOPER:

[1]By Notice sealed on 14th July 2003, Mrs Obasa applied to this court for an extension of time in which to apply for permission to appeal from the decision of the Employment Appeal Tribunal (EAT) dated 16th December 2003 and for permission to appeal that decision. In so far as the application for the extension of time is concerned, Sir Martin Nourse granted her that extension on 30th January 2004 with liberty to the respondent to apply to the full court to discharge the extension if so advised. No such application is made.[2]The two applications had originally come before Mummery LJ on 24th November 2003. The applications were at that time dismissed, Mrs Obasa not appearing and not being represented. Mummery LJ, however, gave her permission to apply to set aside the order, such application to be supported by a medical certificate stating the reasons for her non-attendance at court. Subsequently she provided a medical certificate and the order of Mummery LJ was accordingly set aside.[3]On 30th January 2004 the applications came before Sir Martin Nourse. He granted Mrs Obasa permission to appeal the decision of the EAT to affirm the decision of the Employment Tribunal (ET) to strike out for want of prosecution. Sir Martin Nourse also ordered that the application for permission which related to an order made against Mrs Obasa by the Tribunal in relation to costs be adjourned to the full court. Mrs Obasa on advice (so she told us) has sensibly abandoned this application.[4]The application which was struck out on 20th September 2001 had been received by the Tribunal on 15th June 1998. It alleges as against the respondent unfair dismissal, race and sex discrimination and disability discrimination. In its grounds of resistance the respondent denied that it had unfairly dismissed the applicant or subjected her to any form of discrimination. The respondent alleged that in June 1995 it had accepted the request made by Mrs Obasa to resign from her employment under a "maternity and parenthood scheme policy". It is the respondent's case that it was made clear to her that there was no contractual right to return to the post. Thus, so the respondent submitted, Mrs Obasa was no longer an employee after 15th June 1995. According to the respondent the only right that Mrs Obasa had was to have efforts made to accommodate her in a suitable job in the Council. According to the respondent Mrs Obasa had written on 5th June 1997 giving notice of her desire to return to work under the scheme. According to the respondent it has made reasonable efforts to find her a job. She was interviewed on 16th December 1997 for a post but she was unsuccessful. Paragraph 7 of the grounds of resistance read:
"The Respondent has offered the Applicant the post of support worker ... subject to satisfactory medical clearance on 5 January 1998. This clearance has now been obtained and the offer will be made to the Applicant despite the issue of these proceedings."
[5]In paragraph 8 the respondent claimed that it had given a suitable reference for her to a third party when asked.[6]On 6th January 1999 there was a preliminary hearing before an ET. The complaints made by Mrs Obasa of unfair dismissal and breach of contract were dismissed for lack of jurisdiction. In so far as the race, sex and disability discrimination claims were concerned, it was held that there was jurisdiction with regard to acts of the respondent after the 5th June 1997. The appellant was ordered to serve proper particulars within 21 days. That order was, so the respondent says, not complied with.[7]In February of 1999 the applicant appealed to the EAT against the decision of the ET on 6th January 1999. Following her unsuccessful appeal to the EAT, the matter was ultimately listed for determination on the merits on 5th September 2001.[8]We turn to the decision of the ET on 5th September 2001. On that day the ET adjourned the hearing, making the following orders:
"It is the unanimous decision of the Tribunal that today's hearing be adjourned and that pursuant to regulation 15(2)(e) of the Employment Tribunal's Rules of Procedure Regulations 2001 the Applicant must show cause why her Originating Application should not be struck out for want of prosecution. The Applicant must show cause by sending to the Tribunal, within 14 days of today's hearing i.e. to be received by the Tribunal not later than 19 September 2001, a doctor's letter or report to the effect that the Applicant was unfit to attend the Tribunal hearing today, or the Applicant may give other good and sufficient reason in such letter for her non-attendance at the Tribunal hearing today. "
If the Applicant fails to submit a letter in the terms of this Order within the time limit specified, the Originating Application shall be dismissed for want of prosecution. "The Tribunal further orders that the Applicant shall pay to the Respondent the sum of £1,000 in respect of the Respondents' costs of today's hearing, such sum to be paid within one month of today's date, i.e. by 3 October 2001."[9]On 27th September 2001 extended reasons were sent to Mrs Obasa. The ET wrote:
"1. This hearing is the culmination of a very long history of litigation between Mrs Obasa and the Respondents. The last decision on her various applications was made by the Employment Appeal Tribunal ('EAT') in a judgment delivered on 12 May 2000. That decision disposed of a number of Mrs Obasa's claims but there remain claims of race discrimination, sex discrimination and disability discrimination against the Respondent Council in respect of events occurring on or after 5 June 1997. "2. Following the decision of the EAT the case was re-listed for a three-day hearing, originally from 3 to 5 October 2000. That was postponed at the request of Mrs Obasa on the grounds of that she was unwell and also that she was lodging an appeal to the Court of Appeal against the May decision of the EAT. That application for postponement was granted and the case was re-listed for hearing for 20 to 22 March 2001. The Respondents applied to postpone that listing on the grounds of the non-availability of their Counsel, who had been involved in the litigation throughout, and there was further correspondence before the hearing was eventually agreed between the parties to take place from 4 to 6 September 2001. Even that listing was varied because of the non-availability of the Respondents' Counsel on 4 September and it was agreed between the parties that the case would be heard on two days only, namely 5 and 6 September. No objection was made to the Tribunal by Mrs Obasa or her solicitors, who were instructed to represent her in March of this year, and this Tribunal was convened in the hope and expectation that Mrs Obasa's case would finally be dealt with today and tomorrow. "3. At 10 am the Respondents' representatives and witnesses were present and ready to begin the hearing but neither Mrs Obasa nor any representative of hers appeared. At 10.15 am the Tribunal clerk telephoned to the offices of Mrs Obasa's solicitors, who did not know the whereabouts of Mr Ochugboju, who was specifically dealing with her case. He telephoned to the Tribunal at about 10.20 am to say that Mrs Obasa was unwell and it was unlikely that she would be able to attend the hearing. He told the Tribunal clerk that he was conferring with Mrs Obasa's daughter as to the medical evidence which he would wish to present to the Tribunal. He undertook to arrive not later than 10.40 am. In fact, he did not appear until 10.55 am and apologised to the Tribunal for his late arrival. He informed the Tribunal that Mrs Obasa was very ill and because of her medical condition she had instructed his firm to explore the possibility of settling her claim with the Respondents. When he spoke to her yesterday, Mr Ochugboju said that there seemed little likelihood that she would be able to attend but it was not conclusive. He could not tell us whether Mrs Obasa had received any medical advice or attention and indeed he could not even tell us where she was now situated -- either at her home in Wellingborough in Northamptonshire or elsewhere. Some friends of Mrs Obasa were present in the Tribunal but they were unable to assist as to her whereabouts or state of health. "
In the circumstances Mr Ochugboju made an application to adjourn the hearing, both on the grounds of Mrs Obasa's ill health and in order to explore the possibility of settlement. On behalf of the Respondents, Mr Brennan observed that Mrs Obasa had had many months in which to explore the possibility of settlement but there had been no approach by her or on her behalf until Mr Ochugboju had contacted the Respondents' legal department yesterday. Mrs Obasa had made no attempt to let the Tribunal or the Respondents know that she would not be coming today and there was no medical evidence before the Tribunal on which any assessment could be made as to her current state of health. He urged the Tribunal not to adjourn the case but to dismiss Mrs Obasa's claim on the grounds of her non-attendance. "5. In reply Mr Ochugboju stated that Mrs Obasa was a long-term sufferer from sickle cell disease and it was well-documented in the evidence before previous Tribunals that she could experience a crisis at any time. He accepted that the medical evidence was inadequate but it was not possible for his client to attend today and it would be very unfair if the Tribunal were to dismiss her claim. Conclusions "6. We have considered very carefully the submissions on both sides, and we note that until 10.20 this morning there had been no indication given to the Tribunal that Mrs Obasa was unwell or that she would be unable to attend today's hearing. That is a discourtesy to the Tribunal and it is also a great inconvenience to the Respondents who have come here today prepared to deal with the case at length."[10]The ET explained that its initial reaction was to invoke the provisions of Rule 11(3) of the Employment Tribunal's (Constitution etc) Regulations 2001, Schedule 1. Rule 11(3) reads:
"If a party fails to attend or be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 10(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."
[11]Rather than take that course the ET wisely, in my view, decided to make the "show cause" order to which I have referred.

(e) , mentioned in that order, reads as follows:

"A tribunal may ... (e) subject to paragraph (3), on the application of the respondent, or of its own motion, order an originating application to be struck out for want of prosecution."
[12]During the course of argument before us, Mr Brennan QC submitted that the Tribunal could also have applied rule 15(2)(d), which states that a tribunal may:
"... subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings had been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious."
[13]Mr Brennan sought to argue that if the ET had applied rule 15(2)(d) the result would have been the same, namely striking out. In my view it would be quite wrong now to decide this appeal on a basis which was not considered by the ET in September 2001.[14]Later in its extended reasons the ET wrote:
"7. ... The terms of the Show Cause Order will be that she must provide medical evidence in the form of a doctor's letter which will demonstrate that she was unfit to attend the Tribunal hearing today on medical grounds. It may be, of course, that there is some other good and sufficient reason for her non-attendance, and that too would be an appropriate basis for her response to the Show Cause requirement. "
We will therefore adjourn today's hearing for 14 days in which time Mrs Obasa must send a letter to the Tribunal, either personally or through her solicitors, giving reasons for her non-attendance as indicated above. If she fails to do so within that 14 day period, i.e. by 19 September 2001, her Originating Application will be struck out for want of prosecution pursuant to rule 15(2)(e) of the Employment Tribunals Rules of Procedure Regulations 2001."[15]The ET then considered the question of costs. There is no appeal from that decision now but it is important to set out the findings as part of the background to what was to happen on 27th September. The ET wrote:
"9. Under regulation 14 of the same Rules where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted unreasonably, the tribunal may make an order containing an award against that party in respect of the costs incurred by another party. Under the new Regulations the sum which the tribunal may award in respect of costs incurred by that other party may be a specified sum not exceeding £10,000 or, unless the parties agree on a sum, costs to be assessed by the County Court. "10. While Mrs Obasa may have been unwell because of her long-term medical condition, it appears from what Mr Ochugboju tells us that she has been in that state for some days and has been thinking of settling the case for some days. In those circumstances she or her representatives could have notified the Tribunal and the Respondents prior to today's hearing that either they were seeking an adjournment or that Mrs Obasa was not going to be well enough to attend. That did not happen and, indeed, at 10 o'clock this morning neither the Tribunal nor the Respondents had been given any information as to Mrs Obasa's non-attendance. We consider that that is unreasonable conduct on her part, and the fact that her representatives did not communicate with the Tribunal until 10.20 am and did not arrive at the Tribunal until 10.55 am is further evidence of unreasonable conduct. We therefore intend to make a Costs Order against the Applicant in respect of the costs of the Respondents which have been thrown away by today's abortive hearing. "11. Having heard further submissions from both representatives, the Tribunal makes an Order that the Applicant shall pay to the Respondents the sum of £1,000 in respect of the costs wasted at today's hearing. Such payment is to be made to the Respondents within one month of today's date."
[16]I turn to the decision of the ET dated 27th September 2001. As became clear during the hearing, both Wall LJ and I thought that there had been an oral hearing on that day. Indeed, on the first page of the Decision are the names of those appearing for the appellant and the respondent. In fact there was no oral hearing. That is disturbing. More disturbing than that however is that the extended reasons for the adjournment, for the order to show cause and for the order to pay costs, were not sent out until that same day, 27th September. Not having those reasons, the appellant was in no position to show (on her case) that Mr Ochugboju did know that she was in Spain and that she had notified him on 3rd September of her inability through illness to attend the hearing on 5th September. Before us she produced two apparently contemporaneous documents to support that. She produced a letter dated 13th September 2001, written to her solicitors. The thrust of the letter is that she no longer wishes to instruct them in this case. She said that the reasons, which she had already discussed with them, were as follows:
"1. You failed to notify the tribunal of my communication with you on the third and fourth of September of the fact that I was ill and will not be attending the tribunal and that financially as well it was difficulty for me to return from my holiday in Spain."
[17]If that is right, then by 3rd September, namely two days before the start of the hearing, her representative knew that she was ill and had been given two reasons why she was not attending.[18]In paragraphs 2 and 3 she complains about not being updated about the outcome of the hearings. In paragraph 4 she complains again about not receiving feedback about that hearing after 11th September when they had spoken on the telephone. Complaint is made in paragraph 5 about the failure to provide adequate documents to the Tribunal, and also the fact that "you turned up at the Tribunal late for the hearing, this is unprofessional". In paragraph 6 it is said:
"Your statement that you did not notify the tribunal because of negotiations in regards to settlement is flabbergasting, as my representative you ought to have known that this is not adequate reason and that it would jeopardise my case. In the event of these occurring, I will hold you personally liable for these."
[19]She then tells the solicitor that she will notify the Tribunal that the firm was no longer acting for her.[20]The second document is a fax, dated 4th September 2001, sent by the firm of solicitors who she had instructed in a Northampton County Court matter. That fax makes it clear that the firm of solicitors had been told that Mrs Obasa was unable to attend a case management conference in the County Court "because she is stranded on holiday in Spain".[21]At first I was minded to think that the letter of 13th September ought to have been put before the ET as well as the fax and that non-production to the ET raised doubts about the appellant's conduct of the case before the ET. When we learnt that she had not received the extended reasons before sending the letter which she had been directed to provide, and when we learnt that the hearing had not been an oral one, any concerns about her conduct (in this respect) disappear. That explains why she sent only very limited documentation to the ET, being documentation to which the ET refers in its extended reasons.[22]I add two matters. First, the appellant was not able to deal with the findings which had led to the payment of costs to the extent to which such findings might underpin a strike out order. She could not deal with those findings because she had not received a copy of the extended reasons. Secondly, she has produced a letter, albeit dated 19th October, which purports to confirm that she had made inquiries about a return flight on 4th September.[23]I turn now to the 27th September extended reasons for striking out the appellant's claim for want of prosecution. I set them out in full:
"1. On 5 September 2001 the Applicant failed to attend a hearing which had been fixed and notified by the Tribunal to the Applicant and the Respondents on 4 July 2001. On 3 August 2001 the Tribunal wrote to the parties following a request from the Respondent agreeing to the hearing being reduced from three days to two days and to take place on 5 and 6 September. No further communication was received from the Applicant or her representatives following that letter until the date of the hearing. At the hearing the Applicant did not attend but her representative Mr Ochugboju did eventually appear, albeit late and gave an explanation as to the Applicant's non-attendance. The full facts of that explanation are set out in the Tribunal's decision of 27th September 2001. "2. As a result of Mr Ochugboju's representations the Tribunal made an order that the Applicant's case should be struck out for want of prosecution unless she showed cause, by means of a doctor's report or some other good and sufficient reason, for her non-attendance at the Tribunal hearing. The Tribunal impressed upon Mr Ochugboju the importance of advising the Applicant of the Tribunal's decision and requirements even though the written Decision might not have been promulgated within the time limit stated in the Decision. "3. Mr Ochugboju must have carried out the Tribunal's direction because on 13 September Mrs Obasa wrote to the Tribunal and explained her absence from the hearing on 5 September as follows: "
'My application to the Tribunal was lodged in 1998, an element of my case had to be appealed at the Employment Appeal Tribunal for which my case was delayed. Following this the Respondents had made several requests for postponements which were granted by the Tribunal, their last request for postponement was made in regards to this hearing with the results that the hearing dates were reduced from three to two days. "'Within this process I had booked the only available flight dates for our holiday in Spain as the issue whether the Tribunal was going to confirm the postponement of the hearing dates was up in the air. The Tribunal's final decision was arrived at with the parties [sic] consent, it became evident that my holiday clashed with the hearing dates. However because of the importance of this case to me and the impact of the stress level I was under my decision and intention was that I would rather cut short my holiday dates. The dates booked were for 24 August to 7 September 2001. My plan was to meet the additional costs of an early return flight on 4 September in time for the hearing. "'I had instructed Pedro Emanuel, Solicitor (Emanuel Ochugboju LLB Hons BL) as my representative and also requested my friend Dr Grace Awaekpo to meet me at the Tribunals as my support. "'2. Please note that while camping in Spain I had a sickle cell crisis on 3 September, upon which I made a reverse call charge to my representative Pedro Emanuel, Solicitor seeking their assistance in instructing them to notify the Tribunal that I was unable to return for the hearing due to illness, and I also discussed with them financial matters relating to the cost and the fact that my return early will leave my children age 18, 16 and 8 years on their own in the campsite for two and a half days. I was willing and planned to do this, the overriding factor is the fact that I was not well enough to travel and carry a suitcase, which my children had helped me with previously. "'My absence was based solely on the factor of my illness and disability; I am enclosing for the Tribunal's attention my travel documents, campsite registration and the latest medical reports in regards to my disability/illness. "'Please note that before travelling on 22 August I was seen by my consultant and my haemoglobin level was 9.1 and my weight was 11st 6lbs, I was seen by my consultant Dr Littleton yesterday (12/9/01), my haemoglobin was reduced to 8.9 and my weight to 11st 1lb, I have lost 5lbs during this period of illness. As a result and because of a new drug treatment I have been under since 8 August, my consultant has ordered weekly blood tests for monitoring my progress. I enclose evidence of this for the Tribunal; I also give my consent for the Tribunal to contact my consultant in Kettering General Hospital ... "'I am extremely sorry that my representative failed to notify the Tribunal as I instructed them to, I am sorry that my representative say fit to turn up late having failed to carry out my instructions. My intention to attend the hearing is borne out by the fact that I had instructed my representative, and my friend whom I could not get in touch with on the day turned up at 9.46 am to meet me as planned.' "4. Mrs Obasa also objected to the order for costs made against her and informed the Tribunal that she had withdrawn her instructions from the firm of Pedro Emanuel and that Mr Ochugboju was no longer acting as her representative. "5. Attached to the letter were copies of the passenger ticket for Mrs Obasa's flights between Luton and Malaga. This ticket was issued on 26 July, i.e. three weeks after she had been notified that the hearing was to take place from 4 to 6 September, and refers to flights from Luton to Spain on 24 August, returning on 7 September at 19.50. It is apparent that by booking flights between those dates Mrs Obasa was putting herself in a position whereby she would not be in this country on the dates originally fixed for the hearing. Also attached is a receipt from a Spanish camp site on which was written the words 'Pagado Hasta El 7/8'. (Paid until 7/8). We suspect that was an error and should have referred to payment until 7/9 since Mrs Obasa did not arrive in Spain until 24 August and was due to leave on 7 September. She also attached a letter from Kettering General Hospital reporting on Mrs Obasa's medical condition, dated 26 January 2001. This letter appears to have been written in support of Mrs Obasa's request to reduce her working hours from 37 to 30 hours per week. The author of the report states as follows:
"'To date Mrs Obasa has managed her sickling crises reasonably well though frequent bone pain remains a problem. Early onset crisis can be managed at home with analgesic fluids and bed rest. In more severe cases, hospital in-patient treatment is required. So far Mrs Obasa has managed to keep her in-patient admissions to a minimum with treatment at home.' "
Mrs Obasa has also attached a copy of a pathology receipt dated 29 August 2001 which gives us no information about her current medical condition. Finally she attached a copy of a partial decision of the European Court of Human Rights as to the admissibility of an application made by Mrs Obasa, which was substantially dismissed, and finally a copy letter from her solicitors to herself dated 4 August reminding her of the hearing dates of 5 and 6 September and asking her to put them in funds to enable them to continue to represent her. "6. The order requiring Mrs Obasa to show cause why her application should not be struck out for want of prosecution, required her to produce medical evidence or some other good and sufficient reason for her non-attendance at the Tribunal on 5 September. She has produced no medical evidence as to her condition at or about the date of the hearing which would have prevented her from attending. She says in her letter to the Tribunal that she had a sickle cell crisis on 3 September, but she does not appear to have consulted a doctor in Spain, or if she did so, she has not produced any report or evidence from any medical authority as to such consultation or treatment. "7. It is apparent from the Tribunal's decision at the hearing on 5 September that Mr Ochugboju either did not know or chose not to tell the Tribunal that Mrs Obasa was in Spain. We know that he spoke to her a few days before the hearing and this could only have been when she was in Spain, although she may not have disclosed that fact to him. What is clear from the documentation which Mrs Obasa has attached to her letter is that in the knowledge that she had a three day hearing from 4 to 6 September, dates which she herself had agreed with Islington Council, she then went ahead and booked a holiday for herself and her three children on a camp site in Spain and which was due to extend until 7 September thus rendering it impossible for her to be at the Tribunal for the hearing. She says in her letter that it was her intention to purchase a separate return flight for herself on 4 September in time for the hearing but that she was prevented from doing so because she had a sickle cell crisis on 3 September. It seems to us most unlikely that if she had intended to return to England on 4 September she would not have already purchased that ticket prior to 3 September. The fact that she has not sent us a copy of that ticket indicates to us that she did not do so, nor did she seek to change the return date on her original ticket. We also find it extraordinary that she should contemplate returning to England on 4 September, leaving her three children aged 8 to 18 years alone in a Spanish camp site until they were due to return on 7 September. "8. Having considered Mrs Obasa's letter and enclosures we find that the reason that she has given for her non-attendance is quite unsatisfactory and insufficient to constitute good cause for avoiding the strike out order. "9. The order to strike out the Originating Application for want of prosecution made on 5 September 2001 is therefore confirmed."[24]The Employment Appeal Tribunal, in dismissing the appellant's appeal against the decision of the ET, said:
"12. On 5 September 2001 the Employment Tribunal had directed the Appellant to show cause in writing why her Originating Application should not be struck out on the basis that her non-attendance demonstrated that she was not prosecuting her claim. The Appellant made representations by letter in response to that direction accompanied by supporting documents. The Employment Tribunal reconvened and considered those. For the reasons that it gave, it dismissed the Originating Application for want of prosecution. "13. The Appellant contended that no reasonable Employment Tribunal properly directing itself to the background facts and the material contained in her written representations (and supporting documents) could have reached the conclusion that she was not prosecuting her claim. "14. We were not satisfied that the Appellant had met the high threshold necessary to demonstrate that the Employment Tribunal's exercise of discretion had been perverse. We were satisfied that, on the material before it, the Tribunal had acted within the scope of the discretion that it had to strike out the Appellant's claim. "15. For those reasons we dismissed this appeal."
[25]In giving permission Sir Martin Nourse referred to the appellant's skeleton argument. He then said:
"9. More significant than that, the skeleton argument re-presented by Mrs Obasa contained a submission that the ET failed to abide by the principles laid down by the House of Lords in Birkett v James [1978] AC 297. In my view that is the most important point to be considered today, those principles not having been referred to either in the skeleton argument of counsel for Islington before the EAT or in their judgment promulgated on 17th June 2003."
[26]Having set out the relevant Rules, Sir Martin Nourse continued:
"12. In Evans v Commissioner of Police for the Metropolis [1993] ICR 151 it was distinctly held by this court (Balcombe, Steyn and Hoffmann LJJ) that the power of an industrial tribunal to strike out an application for want of prosecution was to be exercised in accordance with the principles of Birkett v James. Under those principles the power should be exercised only where the court or tribunal is satisfied either (1) that the default has been intentional and contumelious, or (2) that there has been inordinate and inexcusable delay giving rise to a substantial risk that it is not possible to have a fair trial etc, see per Lord Diplock [1978] AC at 318. "13. It is evident that the present case was not covered by the second of those tests. It is also doubtful whether it was covered by the first. The examples of intentional and contumelious default given by Lord Diplock were disobedience to a peremptory order of the court or conduct amounting to an abuse of process. It is very doubtful whether a court exercising this jurisdiction before the coming into effect of the Civil Procedure Rules would have regarded a claimant's failure to attend in person at the trial, even when her case could not succeed without her evidence, as an intentional and contumelious default, however aggravated may have been the circumstances. In saying that I take account of the fact that the circumstances in this case included the failure of Mrs Obasa or her solicitors to inform the ET that she would not be there until 10.20 am on the day in question. "14. It is therefore arguable that the ET did not properly direct themselves in applying Rule 15(2)(e), and that their decision must be set aside on that ground."
[27]In my view it is not necessary to resolve this issue. Whether, as Mr Brennan argues, the necessary factual findings to pass the Birkett v James test can be spelled out of the decision of the Employment Tribunal is a moot point. What in my view is decisive is that the appellant did not have a fair hearing in so far as the strike out issue was concerned. Mr Brennan argues that the appellant had all the material she needed to make her submissions. As I hope I have shown, that is not right. I add this: her explanations contained in the letter which she did send were such as to require an oral hearing if her explanations were going to be rejected. For example, in the light of what she said about her illness whilst in Spain and her inability to produce a medical certificate (so she said), she ought to have been given an opportunity to explain on oath her reasons for not attending. For these reasons I would allow the appeal and remit the matter to the Employment Tribunal for a directions hearing prior to the hearing on the merits.[28]I add only this in conclusion. If the appellant had been given a fair hearing it may well have been that her explanations would have been rejected (and there was material so to do; see, for example, paragraph 5 of the 27th September reasons) and it may well have been that the necessary intentional default would have been found. Unfortunately, given the protracted history of this case, she did not receive a fair hearing which she should have received following the hearing on 5th September.

LORD JUSTICE WALL: I entirely agree. The order made by the Employment Tribunal on 17th September 2001 will accordingly be set aside with the consequential directions my Lord has indicated.

[30]Very sensibly, since this matter was adjourned from this morning for judgment, neither party has attended for the purposes of taking judgment. We do not think it therefore right to deal here and now with any questions of costs which might arise. Mrs Obasa is in person. If she has an application for costs, then that application should be made to us in writing with a copy, of course, sent to the respondent to the appeal, who may themselves respond in writing, and we will deal with the matter on paper. We see no purpose in reconvening the court for the purpose of an argument on costs, particularly since Mrs Obasa is in person, and that is the way we will deal with that particular issue.

Order

application allowed.