Balabel v Davis & Ors [1991] UKEAT 153_91_1909

EAT
Balabel v Davis & Ors
[1991] UKEAT 153_91_1909 · 1991-09-19
MR JUSTICE WOOD (PRESIDENT): This is an Appeal from an Order made by the learned Registrar on the 10th June of this year when she refused leave to the Appellant, Mr K Balabel to appeal to this Court out of time. His Notice of Appeal, which is dated 4th April 1991 was received on the 8th April, it is 272 days out of time.The learned Registrar had a number of documents before her. This is as is to an appeal to a Judge in Chambers from a Master in the Queen's Bench Division, a re-hearing of the matter. In reaching my own decision I therefore consider all the documentation in the index, of some 58 pages, and of course look also at the original Decision and the merits of the Appeal itself.The matter started by an Originating Application dated the 16th August 1989. The Applicant was a Miss Davis and she was employed as a designer and fitter at a shop in the clothing industry, and she cited as Respondents Mr Kamal Balabel, Mr Mohamed Akard and thirdly, Elan Fashions Limited.No Notice of Appearance was entered. The matter came before an Industrial Tribunal sitting in London (South) on the first occasion on the 16th February 1990. Mr Balabel did not attend and claimed that he had not been informed about the Hearing. Miss Davis was kept waiting and was told that she would have to come another day. It was adjourned until the second Hearing which was the 23rd March 1990; Mr Balabel arrived very late, after being telephoned by the Clerk, he asked for an adjournment because he wished to seek legal representation. He was granted an adjournment by the learned Chairman and told to bring some specific documents to the next Hearing; he was also advised that he should be on time.The third Hearing took place on the 17th May 1990. Mr Balabel was three quarters of an hour late - his business incidentally is in the West End of London - and the Hearing started but about 10 minutes later the Tribunal were informed that he was on his way. The learned Chairman apologised to Miss Davis and asked her to wait. Mr Balabel arrived but he arrived without any legal representative and carrying a huge pile of books. They were not the ones specifically ordered to be produced at the earlier Hearing. He told the Tribunal legal representation was an unnecessary expense. So the Hearing took place and Miss Davis claimed wages; holiday pay and pay in lieu of notice.The Tribunal awarded her the sum of £4,050. The history of what I have just recited appears in part in the Decision. The Tribunal found that Mr Balabel had received a letter on 27th July 1989 from the Applicant who sought a meeting to complain about the way she was being treated and to recover the sum she alleged to be due. On that day, as reccounted by the Tribunal, she met Mr Balabel, he merely tore up her letter and refused to discuss the matter.It was of course necessary for the Tribunal to assess the witnesses because there was a direct conflict of evidence, as there is before me. In paragraph 13 the Tribunal say this:
"The Tribunal found that Mr Balabel was from time to time unable to distinguish between fact and fiction, and when asked why the applicant was paid until 9 May 1990 if her contract had been terminated by mutual consent at the end of March, he was unable to give any satisfactory answer. He was unable to say why he had the applicant's P45."
and then paragraph 14;
"Where the evidence of the applicant differs from that of the respondent Mr Balabel, we unreservedly accept the evidence of the applicant and reject the evidence of Mr Balabel."
and in paragraph 17 they further assess him in this way, they say:
"Finally, we are satisfied that Mr Balabel has both the experience and the will to change corporate skins when it suits him, and some time was wasted in discussion about exactly when he was director of Elan Fashions Ltd and how many shares he may have held at any given time. We are fully satisfied that whatever agency he may have chose to pay cheques to the applicant, he was, at all times, her employer and as such, it is against him personally we make the order."
So that was the Decision on that date and the Order of £4,050.The Decision was given orally and I am told by Mr Balabel in his affidavit before me that he indicated he wished to appeal.The Applicant sought to give effect to the Order in the Oxford County Court; an Order was made giving Judgment and with the usual forms. Miss Davis received a copy of the Order of the 17th September 1990 and waited for payment to be made. She telephoned Mr Balabel on the 22nd October 1990 to ask payment under the Order, she deposes, and I have no reason to doubt her, that he was very abusive and said "he was not going to pay the Order and that I would never get any money out of him over this matter". That very same night, she sent him a letter and that letter is exhibited to her affidavit dated 22nd October from her address on Rose Hill at Oxford saying:

"Dear Mr Balabel

After our conversation, I am writing to you asking for payment of the Order which was sent to you from Oxford County Court, dated 17 September 1990, for the sum of £4,050.00 plus interest at 15%, £41.50, along with costs.If I do not receive the money from you, I shall take this matter further.

Yours sincerely

(Signed) Katrina Davis (Ms)"

The matter then continued and it came about that Miss Davis's Solicitors wrote to Mr Balabel and also called upon him. He ultimately applied to the Oxford County Court to set aside the Judgment, and his case is of course, that he did not receive a copy of that Order, and he is only seeking to set it aside and to appeal to this Court because he did not receive a copy of the Decision until a date early in April of this year.The form which he sent to the County Court, on which he typed out his application, is in fact an Oxford County Court form, with "Oxford County Court" printed on the top, and it is argued, and I agree, it is a reasonable inference, that that was part of the forms which had been sent to him when the Order was sent to him.The Appeal from the Order of the learned Registrar first came before me on the 30th July of this year and on that occasion Mr Balabel was not here, but he was represented by Mr Goulding, of Counsel, instructed by a firm of Solicitors, Messrs Bates Wells & Braithwaite of 61, Charterhouse Street, London, EC1. They produced a later affidavit and I heard considerable argument; the matter was adjourned; I ordered the costs "thrown away" to be paid by Mr Balabel so that an affidavit could be sworn by the Applicant in answer to that of Mr Balabel. On the 3rd September this year, those Solicitors wrote saying that they were coming off the record, and that they were no longer instructed.The date today was fixed for the convenience of all parties on the last occasion on the 30th July when the matter was before me. When we continued to hear the Appeal this morning Mr Balabel first of all asked for an adjournment, he said that he had instructed new Solicitors yesterday and that Counsel could not attend. Today's date was fixed with the consent of Mr Goulding at the time and I do not accept that that was so. Of course the application for adjournment at the last minute in order to give instructions to a new firm is part of a pattern of Mr Balabel's behaviour.However, if there really was any merit to be discussed or argued then of course it would only have been fair on Mr Balabel to grant him an adjournment. However, in view of his statement, which I accept from the evidence of Miss Davis, that he did not intend to pay her a penny, and as he tells me he can raise £4,000,000 he said "I am good for £4,000,000" in his submissions to me, I felt it not unreasonable to ask for a condition if he wished to continue with that application to adjourn, that all the monies due to date should be brought into Court today, and of course, with his wealth a Banker's Draft during the course of today would have been perfectly possible.His attitude is perhaps exemplified by his careful consideration of the condition upon which I was insisting, or was intending to insist, and of course he did not accept that condition because I suspect that he is not going to pay unless made to pay.However, the situation is this, was the learned Registrar wrong in reaching the decision she did? I have looked at the merits of the Appeal itself, it was purely a question of fact, who was to be believed and who was not to be believed. The Industrial Tribunal saw and heard the witnesses, they formed a very clear view as is indicated from those passages to which I have already referred. I am quite unable to find any error of law in their Decision and it is only if there is an error of law that an Appeal lies to this Court. So on the merits of the Appeal it seems to me that there is no merit in it on the face of the documentation.Secondly, Mr Balabel is obviously a highly intelligent man; he indicated he wished to Appeal at the time of the Hearing and it might have been that he would have been enquiring about the Decision. However, there is also a piece of evidence which has been laid before me and that is a letter from the Regional Office of the Industrial Tribunals at London (South) which was the relevant office where this case was heard, and that was in answer to a request from Solicitors from the Applicant. It is dated 24th April of this year and says, having set out the parties:
"This is to confirm that we did send the Decision of the Tribunal in the above case to the parties on 12 July 1990.
I further confirm from our records that copy of the Decision was sent to the respondents at this address below.Mr K Balabel, Mr M Akard are to Elan Fashion Ltd at Plaza, 1A Great Cumberland Place, London W1H 7AL.

The Decisions have not been returned to us in the dead post service."

It seems to me, that this one document is said to have gone astray on this occasion and I find in the light of the evidence, and in the light of the Judgment made by the Industrial Tribunal that really there is no ground here for accepting the situation as put forward by Mr Balabel and I reject it. This is a case where the proposed Appellant is intent on avoiding payment, time is of the essence and I see no reason why the matter should be delayed any further.As far as the Decision and the exercise of the discretion I am quite satisfied that the Decision was a correct one for the reasons which I have given at some length so that Mr Balabel may understand what was going through my mind.This Appeal is dismissed.