Hilton v Layley [1992] UKEAT 358_92_0107

EAT
Hilton v Layley
[1992] UKEAT 358_92_0107 · 1992-07-01
MR JUSTICE WOOD (PRESIDENT): By a decision by the learned Regional Chairman, which was promulgated on the 8th April of this year, he refused an application by Mr Hilton to enter a Notice of Appearance in an Industrial Tribunal although it was considerably out of time. He gave his Reasons in extenso because of the history of the matter in some seven pages and Mr Hilton appeals now to this Tribunal.It was an exercise of discretion, which is a wide one, and it is only if there is a wrongful exercise of that discretion, either in the application of the law or on the general Wednesbury principles that this Court can interfere with that decision.Mr Higgins, for the Appellant Mr Hilton, has submitted that there are three main criticisms of the reasoning, first that the learned Chairman considered the matter of delay and that it was a material factor. He submitted that in fact the delay was not nearly so serious as indicated because the Industrial Tribunal had failed to accept an earlier dated fax as a Notice of Appearance which deemed to include an application for extension of time. Secondly, that in considering hardship the element of delay was included and that because of the earlier submission too much weight was given to that factor. Thirdly, the submission is that findings of fact, were made without evidence given and in fact the reasoning upon which the decision was made was flawed. Finally, but not so importantly, that there was one particular part of the Reasons in the decision of the learned Chairman, which was not well founded.Having stated those broad submissions it is necessary to look in very considerable detail at the history of this matter in order to see the reasoning behind the decision to refuse the application for extension.On the 7th August 1991 the Applicant, Mr Layley presented a claim for unfair dismissal and also for failure to give written reasons for dismissal. On the 20th August the usual documents were sent out to the Respondent, Mr Hilton. As is well known, the documentation which is sent out includes not only a copy of the Originating Application but clear instructions on the course which a Respondent should take, and in particular, that it is necessary to enter a Notice of Appearance if the matter is to be disputed.On the 10th September a recorded delivery reminder was sent to the Respondent, and it is from the decision to refuse a review that we are able to discover rather more of what went on at that early stage, although not specifically referred to by the learned Chairman, Mr Rich in his decision of April 1992.Mr Edwards, who was the Chairman presiding at the earlier stages, says this, in his reasons for refusing a review, in paragraph 5:
"When no Notice of Appearance was received from him, [that is Mr Hilton] a Recorded Delivery letter was sent on 10 September 1991 and this letter pointed out that he had failed to enter an appearance, but that it might be possible for the Tribunal to accept a late Notice of Appearance, and that if he wished to take part in the proceedings he should complete the Notice of Appearance immediately. No response was made to this Recorded Delivery letter, and therefore the application was treated as having been served properly and no appearance having been entered."
Notice of the hearing was sent for information only to the Respondent on 26 September 1991, a telephone call was received on the 30th September, and that telephone call is referred to by Mr Rich in his Reasons of April 1992. However, in Mr Edward's decision there is also an indication that Mr Hilton was told again, by a clerk, that if he wished to enter an appearance it would be submitted before the Chairman for his Directions.The note of the telephone conversation on the 30th September on the file, reads as follows:
"`The respondent `phoned re. hearing in this matter. He was most indignant that matter had been listed as the applicant was never employed by him. I did explain that we had received no response from him and if he submitted such it would be placed before Chairman for his directions. He didn't see why he should as he had told me he had not employed applicant. He may or may not write in!'"
The application was duly heard on the 15th November. The Respondent did not attend. The Chairman was Mr Edwards. There was an award of £3,490 and the decision was sent out to the parties on the 20th November. On the 21st November there was a second telephone conversation and the file note reads as follows:
"`He was very irate and he stated he had not received any correspondence from us and he had not employed applicant, or any other person. He stated he was being victimised and that we should pay for the cost of calls etc. that he incurs. He refused to write in to the Chairman to ask for a Review of the decision, insisting that he speak in person to the Chairman. He inferred that we were also involved with being prejudiced against him and that he would contact his MP. Eventually he did concede to send in a Fax when I was adamant that nothing could be done till he put his comments in writing to us. We await the Fax in earnest. Please see Document 7 which disputes respondent not having been aware of the application.'"
That of course refers to the earlier correspondence.Pausing there, on the 21st November, it is quite clear by then that more than once Mr Hilton has been told that if he wanted to take part in these proceedings and raise objections he must first of all file a Notice of Appearance. He has had every opportunity to do so, he has been so informed and his attitude is one of complaint and somewhat irrational as indicated in that entry of the 21st November. On that same day a fax was sent. It reads as follows:
"`I note, however, that I am named personally as the respondent. I would like to state that at no time have I personally employed Mr Layley and if he has informed you as such, then he has misled you completely. I was, however, director of Hilton Transport Services Ltd which did employ Mr Layley. This company is now in receivership being administered by Touche Ross and Co, Carlton House, Carlton Place, Southampton SO1 2DZ. All papers relating to this case were forwarded to them to deal with.
I am somewhat surprised that the Tribunal has not taken the trouble to substantiate Mr Layley's claims before issuing a judgement against me personally in error. I trust therefore that the necessary review will be undertaken by yourself and the paperwork amended accordingly.'"He also said on that occasion that he was forwarding copies of the documents to his solicitors to take appropriate action.On the 22nd November, the next day, a telephone call was received and again a note was made which reads:
"`Mr Hilton phoned enquiring if the Chairman had had sight of the Fax he had sent in. He spoke about how wrong it had been for `Mr Hilton' to have been named as respondent but spoke about `his fax'. He said he was phoning on behalf of Mr Hilton, although it was obvious by the reference to `his' fax that it was Mr Hilton speaking. I informed him that the fax had been referred to the Chairman and a decision would be sent in due course.'"
On the 25th November a, Mr Baker or Barker, `phoned. There was an indication that there would be an application for an injunction and otherwise I do not think that we need refer further to that conversation.The learned Chairman, Mr Edwards took the facts as an application for a review and on Tuesday 26th November he duly gave his decision, as we have already indicated, rejecting that review.On the 2nd December 1991 Mr Hilton instructed his present solicitors, who on the 12th or the 5th December received some pay slips apparently indicating that Mr Layley had been paid by the Company.On the 24th December 1991 a Notice of Appeal was lodged with this Appeal Tribunal. There had still been no Notice of Appearance. The Appeal was against both earlier decisions.On the 13th February this Tribunal wrote indicating that the Appeal was not a valid Appeal and subsequently a letter by way of reply was received of the 13th February 1992. That Appeal, however, was not persisted in.The case being put forward there was that Mr Layley had been misled by the Industrial Tribunal Office and that the advice given to him was erroneous, and indeed, misleading.The learned Chairman, with this background had to decide exactly what had happened, in particular whether or not there had been misinformation from the Tribunal staff. He gave his views in paragraph 6 of the decision. He said this:
"There is, as can be seen, one possible dispute of fact in this matter and that relates to one of the telephone conversations between the respondent and the Tribunal office. It is for that reason that I have quoted verbatim the file notes as they appear on the Tribunal file. More particularly, however, I bear in mind that on 21 November, in his own fax, the respondent does not mention this at all, nor, even more significantly, is it a ground in the Notice of Appeal."
That Notice of Appeal is the Appeal to this Tribunal of the 23rd December 1991.
"It appears to have been added, or sought to be added, as a further ground of appeal in a letter to the Employment Appeal Tribunal. [that is the letter of 13th February 1992]. Its omission from the respondent's letter and from the Notice of Appeal, coupled with the file notes as set out above, lead me to the inevitable conclusion that the conversation was not as alleged. As a further argument, the balance of probability is against it. In the light of advice which is recorded on the file, it is highly unlikely (and I might say it is highly unlikely in any event) that a member of the Tribunal staff would suggest to a respondent who is denying ever employing the applicant that he need not bother to do anything. It is also not without interest that the early telephone conversation did not refer to the Receivers, so that nobody at the Tribunal would have the least idea who it was who is going to be concerned, or that anybody else was concerned."
That paragraph is severely criticised by Mr Higgins. The main criticism being that the evidence was accepted without hearing oral evidence. We reject that criticism. The application came before the learned Chairman Mr Michael Rich, Mr Hilton was represented by his solicitor, there was no application to call Mr Hilton, nor was there any application that staff from the Tribunal should also be called. If in fact such application had been made and refused that might have been a matter for very serious consideration by this Tribunal, but no such application was made, and in our judgment the learned Chairman was entitled to approach the matter as he did. Indeed, although one might make some comments on one or two of the approaches which he made, in our judgment he was perfectly entitled to approach the matter as he did and to make the findings that he did. Moreover, we would add, having carefully read the documentation that even if any such advice had been given on the telephone, it is quite clear that the written advice is to the contrary, and indeed it would be remarkable if any Tribunal staff had advised against the necessity of filing a Notice of Appearance in view of the very careful instructions that are given with the papers that are sent out. However, the importance is also stressed by Rule 3 of the Industrial Tribunals Rules. Under Rule 3(1) the basic facts which must be placed in a Notice of Appearance are set out, but under Rule 2 it reads as follows:
"A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except in limited circumstances"
and it has always been well known that if you do not file a Notice of Appearance you have no right to take part in any of the proceedings.However, Rule 3(3) is relevant for the next main submission, under that Rule if a Notice of Appearance is filed out of time then it is deemed to include an application for extension of time which shall not be refused unless notice has been sent to the person wishing to enter appearance giving him an opportunity to show cause why the extension should be granted.The second main submission is this. That the fax which was sent on the 21st November should have been looked upon as a Notice of Appearance, with its deemed application for extension of time and not simply as an application for review. This matter is dealt with by the learned Chairman in paragraph 7 of his decision, when he says:
"I have to say that the document itself does, indeed, contain all the requisites of a Notice of Appearance. It was not treated as such for the very simple reason that it never purported to be such. It was, and purported to be, an Application for Review. Yet again this is not a ground that was raised on the Notice of Appeal, nor significantly has there ever been an appeal against the refusal to review, where it would have been a very appropriate ground."
In fact there was an appeal before us, so that is the point which is taken, but with no particular moment in the reasoning of this decision.So that in our judgment the learned Chairman was entitled to accept the view that the fax was no more than it purported to be, namely, an application for a review.The last main point taken is reliant upon that last factor, because it is submitted that if the facts had been properly taken into account as a Notice of Appearance with its deemed application for extension, then the delay which is subsequently relied upon would not have been nearly so great. The delay is dealt with in paragraph 9 of Mr Rich's decision, and the balance of hardship in paragraph 10. In both those paragraphs the real criticism is that the delay was not as long as indicated there because of the issue about the facts and that it should have been accepted as a Notice of Appearance. The balance however, on the basis that the fax was properly treated as an application for review cannot, in our judgment, be criticised and the balance of hardship was well within the discretion of the learned Chairman.The real cause for the position in which Mr Hilton finds himself, and has found himself for some time, is his own failure to comply with the Rules of Procedure. Information and letters were sent to him in this matter. He has obviously taken an attitude which has not been to his best advantage. What has resulted, is the result of his own fault, the learned Chairman thought so, we think so and there is no ground upon which this Appeal can be substantiated.We are grateful to Mr Higgins for the way he put it, he put it in the only possible way, but in the circumstances this Appeal must be dismissed and it is.