Save & Prosper Group Ltd v Saffin [1992] UKEAT 399_92_1806

EAT
Save & Prosper Group Ltd v Saffin
[1992] UKEAT 399_92_1806 · 1992-06-18
MR JUSTICE KNOX: Save & Prosper Group Limited appeals to this Tribunal from an interlocutory decision of the Industrial Tribunal at London (North) concerning the adjournment which was requested by Save & Prosper, as I will call them, of a Hearing for Directions due to take place tomorrow. Unfortunately, although the notice of that hearing was successfully sent to the Applicant, Mrs Saffin, or more precisely, to her husband who represents her now, the copy to Save & Prosper went astray presumably either in the post or on its way into the post. That is not a matter of any doubt for two reasons. One, we are so told by the solicitors for Save & Prosper, Messrs Simmons & Simmons, who are of course a well known and respectable firm in the City of London. Secondly, although the notice was headed as addressed to Mr Saffin and Messrs Simmons & Simmons, it also, on the face of it, shows that a carbon copy was being sent to the Conciliation Officer at ACAS and ACAS did not receive it either, so that there clearly has been a mishap in the transmission of the notice for this hearing.The Originating Application itself concerns a claim to unfair dismissal and discrimination contrary to the Sex Discrimination Act in connection with Mrs Saffin's dismissal by Save & Prosper on the 20th August 1990. The Originating Application followed later in that year of 1990 and the matter has been proceeding for some considerable time. It is a very complex matter. There is a very great deal of documentation. Mrs Saffin, who appeared on her own behalf today, informed us that there were several brief cases of documents. Moreover, it is a matter of very considerable seriousness because the allegations that are made against Save & Prosper are ones of fraud and the equivalent and therefore merit exceptionally careful consideration.The problem that faces Save & Prosper is that the intimation that this Interlocutory Hearing was to take place only reached them accidentally, as it were, through ACAS on Tuesday 16th June, that is this week and three days before the Hearing. Theirimmediate reaction was to request an adjournment. The basic reason for that was that it was not going to be possible, as it was thought on behalf of Save & Prosper, for there to be proper preparation for what could be an important hearing.Another unfortunate feature is that Mrs Saffin tells us, that there have been notifications and requests to the Industrial Tribunal for this interlocutory hearing which raised specific issues such as discovery of one category of documents or another, and that too has not, for some reason that is not clear to us, reached Save & Prosper. Mrs Saffin, not surprisingly, was not able to produce the documentary evidence with regard to that to us.There is one particular difficulty that arises in connection with Mrs Saffin's side in relation to the Hearing tomorrow and that is that she is, as I have already said, represented by Mr Saffin who is self employed and is presently engaged in his professional business in Paris. He, not unnaturally, has made specific arrangements at some inconvenience and personal cost to be present tomorrow and to leave Paris, therefore, earlier than he otherwise would have done.We have no record of the particular reasons that moved the Industrial Tribunal to reject the application that was made to it on the 16th June, last Tuesday, for the interlocutory hearing to be adjourned.The specific problems on Save & Prosper's side are that there has been experienced Counsel instructed on their behalf in the past and they, not unnaturally, would wish to have the Counsel of their choice at the interlocutory hearing and more seriously, for present purposes, they would wish that Counsel, it is in fact a lady, to be properly prepared in the sense of having had adequate notice to refamiliarise herself with the case. It is not a case where Counsel has to take up the papers afresh. It is the case that the Counsel in question last looked at the matter in detail, we are told, some three or four months ago. But that she has looked at the matter in detail in the past is not in doubt. A somewhat similar situation obtains in relation to her instructing Solicitor, Mr Watson of Simmons & Simmons who last dealt with the matter in detail on the 10th March but he has not been engaged in the matter for at any rate some considerable length of time. So that it is not a matter either for Counsel or for solicitors instructing Counsel, of picking up something new, but it is a complex, difficult and important case.The principles that we have to apply in relation to an appeal, as this is of course, from an interlocutory decision of the Industrial Tribunal, have been stated on a number of occasions and the statement which is to be found in the authority of Medallion Holidays Ltd v. Birch [1985] ICR 578, which is quoted in Harvey, is a passage from Mr Justice Waite's judgment which reads as follows: (I omit some irrelevant words)
"We therefore reject the argument that the Employment Appeal Tribunal has power to review the interlocutory decisions of industrial tribunals upon their merits, regardless of whether any error of law is involved. Interlocutory directions on matters such as . . . the granting or refusal of an adjournment . . . are wholly within the discretion of the industrial tribunal. It is a discretion with whose exercise we have no jurisdiction to interfere unless it can be shown to have been contrary to some established principle of law or have involved a result at which no reasonable tribunal exercising the same discretion could have arrived."
That is a proposition which has been followed and applied in subsequent authorities, notably Adams & Raynor v. West Sussex County Council [1990] IRLR 215 which was concerned with discovery and not an adjournment.We have given careful consideration to this difficult matter. It seems to us that this is one of those cases where there are arguments of compelling force on both sides. We do not consider that the case in favour of allowing the appeal falls into the category of a decision at which no reasonable tribunal exercising the discretion conferred upon it could have arrived. It is unsatisfactory for both parties. Had it been a final hearing we would have had no hesitation in allowing an appeal and granting an adjournment, but this is not a final hearing, this is a hearing for directions, which is of course important, but is something which can be dealt with as the matter goes forward and which we feel it is possible, no doubt with difficulty for Counsel who have been instructed in the past, and is a person of very considerable ability and experience, to pick up. Against that, there are of course difficulties of a practical order but we feel that it would be wrong for the Industrial Tribunal to have regarded this as a case where all the considerations were on one side. They had to perform a balancing act and we see no reason for disturbing the conclusion to which they came.The appeal will be dismissed.