London Borough Of Hackney & Ors v Anyanwu [1992] UKEAT 371_92_1709

EAT
London Borough Of Hackney & Ors v Anyanwu
[1992] UKEAT 371_92_1709 · 1992-09-17
MR JUSTICE WOOD (PRESIDENT): These proceedings concern an allegation of race discrimination brought by Mr Anyanwu against his employers, the London Borough of Hackney and also against three individual members of the staff of that Local Authority. The proceedings were initiated by an Originating Application which was dated 13th June and presented on the 19th June 1991. The three officers of the Authority named are Mr Hyde, Mr Biggs and Mr Hewings. On 27th April 1992 an order was made striking out the notices of appearance of the Respondents, who now appeal.An Interlocutory Hearing took place during the November of 1991, as a result of which an Order was drawn up. That Order indicated that Further and Better Particulars of an allegation of victimisation being made by the Applicant should be provided on or before the 9th December, and that by the 23rd December the Respondents should serve particulars of grounds of resistance to the complaint of victimisation. The Further and Better Particulars served by Mr Anyanwu were served on the 12th December 1991 and they are contained in a substantial body of particulars. There are some 20 pages, in very clear but very detailed handwriting and they required research back as far as 1974. Of course the Borough would have had to consult each of the personal Respondents in order to prepare and answer the case. It was therefore clear that a considerable time would be needed to deal with that matter. It is equally clear that the amount of time which would be needed would not be as much as three months because in fact it was not until the 30th March of this year that that Order was complied with. What happened in the interim is as follows.By a letter of the 6th February the Industrial Tribunal Regional Office wrote to the Respondents indicating that a Chairman had directed that within seven days cause should be shown why the Notice of Appearance should not be struck out because of failure to comply with the Order of the 2nd December 1991.A reply was sent of the 11th February apologising saying that the Further and Better Particulars had stemmed back to 1974 and a great deal of work was involved. But also indicating that there might be an internal hearing, a grievance procedure.By a letter some six days later, namely the 19th February 1992, the Tribunal wrote to both sides a proforma type of letter, it is marked and called an "(IH) 46" in which it indicated that an interlocutory hearing was desirable and it would cover, and there are set out (a) to (f), a number of interlocutory issues. It does not include "striking out".Nothing was heard after that until a letter of 24th March 1992 was sent to the Respondents setting a date for the interlocutory hearing, namely the 24th April at 2 pm, when it was said:
"The Chairman will consider whether the Notice of Appearance should be struck out and the respondent debarred from defending altogether."
That matter was heard, as we have already said, on the 27th April 1992 when there was the Order striking out the Notice of Appearance in respect of all Respondents. It is important to note that the Order was complied with some 3 1 / 2 weeks before the Order for striking out was made.The learned Chairman has been kind enough to write, and it only just come into our hands during the hearing, indicating that he had no notes of the hearing and no particular relevant recollection as to what occurred, but it is quite clear, as Mr Anyanwu has told us, that he did ask, and had been asking for some remedy for the fact that he was complaining, as he was entitled to complain, that the answers to his particulars had not reached him as they should have done.The first matter is this, did the learned Chairman in striking out the Notice of Appearance apply the correct approach in exercising his discretion? He did not have before him, and indeed if we had been sitting in his place at that time we would not have had before us, a Decision of this Court of the 7th July 1992 called The National Grid Company plc v. Mr K S Virdee EAT/301/92, that was a case in which there had been a striking out Order in connection with the production of a document. This Court has seen a number of these interlocutory appeals and it was felt that the opportunity should be taken in that case to review the law at some length as the matter was carefully and helpfully argued before us. We gave a Reserved Judgment, which is in the Library, and after reviewing all the cases we indicated in round terms that the principles to be applied in industrial tribunals and in this Court in connection with striking out, that is the application of rule (4) of Schedule 1 of the Industrial Tribunal Regulations, should comply in its principles with those of the County Court, which in turn apply those principles of the High Court. One of those principles is that a striking out Order is not intended save in the very rarest cases as a punishment, the whole object of these Orders is to achieve compliance with the Order which has been made.We do not feel it necessary to go through all those Authorities the transcript will be available to the learned Chairman and I hope he will see the relevance of the application of the principles which we derive from all the earlier Authorities and sought to apply. If we had applied those principles in the present case, and there is no clear indication of the principle which the learned Chairman did apply, then we have no doubt that we would not have, indeed the learned Chairman would not have, made the Order.It therefore follows, although we have expressed it rather shortly, that the appeal will be allowed and the Order set aside.There are, however, other matters. It is quite clear to us that the Borough here were at fault and that they were certainly at risk of having a number of Orders made against them in connection with the preparation of this case. We see no reason why Mr Anyanwu should be out of pocket either for the Interlocutory Hearing on the 27th April or for this Hearing before us and we propose therefore to award him his costs of those two Hearings.The second point is this that under the provisions of Schedule 11, paragraph 21 of the Employment Protection (Consolidation) Act 1978:
"the Appeal Tribunal may exercise any powers of the body or officer from whom the appeal was brought or may remit the case to that body or officer."
The point has been made by Mr Allfrey that, in fact, where a situation such as this arises, it is in some ways better for an applicant to have the case fully heard with both sides present than to try to struggle with the problems of a burden of proof on his own without witnesses whom he may cross examine. That is true although Mr Anyanwu may not appreciate it at this juncture. Clearly he has suffered some prejudice as a result of what has occurred, it is therefore our intention that that prejudice should be minimised.First of all we will make an Order for Discovery and that will be a general Order for Discovery, each side must show the documents that they have, 28 days and liberty to apply to the Chairman of Tribunals if you want an extension. But it is our intention that the time bracket should be carefully monitored by the Industrial Tribunal. Secondly, we shall direct that each Party prepare and deliver to the other within the same time scale a list of witnesses whom they intend to call and a proof of their statements which in the discretion of the Tribunal hearing the case, may or may not be used, as the evidence in chief. That is a matter for them, but they must prepare those proofs and we see no reason, unless Mr Allfrey argues to the contrary, why they should not be exchanged rather like a planning matter. They can of course be expanded, but there is no reason why they should not be served on the other side so that each side can see what is happening. We shall hear argument about that if there are any submissions contrary to it, but it seems to us(a) sensible and(b) to speed things up, and that again must be done within the 28 days. The next thing that we shall direct is that within 14 days of today an application should be made by both sides for the fixing of a date and in that connection they must be prepared to give an estimate, and a realistic estimate, of the likely length of the proceedings. Lastly any future directions as to documentation, bundles and that sort of thing may be given by the Tribunal. In having given those Orders we then intend that further directions should be given by the Tribunal, because in one case the matter was brought back to us because we had made the original Order. We therefore adjourn all further directions to the Tribunal.Appeal allowed.