Sharma v Viva Video Club [1992] UKEAT 697_92_3011

EAT
Sharma v Viva Video Club
[1992] UKEAT 697_92_3011 · 1992-11-30
MR JUSTICE TUCKER : This matter comes before us as a Preliminary Hearing Ex-Parte in that the Appellant alone Mr Sharma has appeared before us accompanied by his sister and we have allowed both of them to address us in support of his case.Mr Sharma commenced an application before the Industrial Tribunal and set out his case in his Originating Application. He sought representation and he was represented by a man named Eddie Coppinger who was apparently employed by the Employment & Unwaged Rights Unit from Hounslow. According to their notepaper that Unit is a company limited by guarantee and founded by Hounslow. Mr Sharma put his faith in Mr Coppinger to represent him properly before the Tribunal.Unfortunately, according to Mr Sharma, Mr Coppinger withdrew his application before it was even heard by the Industrial Tribunal and the reason he withdrew it is apparently because he received a telephone call from a woman claiming to be the Appellant's wife, telling him that the Appellant, Mr Sharma, wished to withdraw his application. Mr Coppinger did not, as he should have done, confirmed that telephone call with Mr Sharma. He did not take his instructions on it and he certainly received no confirmation in writing. According to Mr Sharma without any consultation Mr Coppinger there and then notified the Tribunal that the application had been withdrawn. Accordingly the Tribunal gave their decision that the application is dismissed on withdrawal by the applicant and in the face of what they had heard, there was no alternative for the Tribunal to act as they did. That happened on 24 April this year and the decision was sent to the parties on the same date and we have no doubt that it was sent to Mr Eddie Coppinger because it was his name and address that appeared on the Originating Application.It was some time before Mr Eddie Coppinger notified the Appellant of that. The Appellant was naturally extremely concerned because it had not been his instruction to withdraw his application. He wished to proceed with it.Accordingly, on 26 May, Mr Eddie Coppinger wrote to the Assistant Secretary of the Tribunal saying this:
"We act for the Applicant in the above matter.
On the 2nd April 1992 we were contacted by someone who claimed to be the Applicant's wife. This individual advised us that the Applicant wished to withdraw his originating application, and so later on that day we wrote to yourselves advising you of what we genuinely believed was the Applicant's instructions.However, subsequently the Applicant has informed us that these were not his instructions and that his wife has never telephoned us.Therefore, can we request that the Applicant's originating application is reinstated as a matter of urgency, and can we also apologise for the inconvenience this must have caused."That was in effect an application to the Tribunal to review their decision. The response was as follows. On 19 June the Assistant Secretary of the Tribunals wrote back to Mr Coppinger in these terms:
"Your letter dated 26 May 1992 has been referred to the Chairman, who has asked me to inform you that the Originating Application was dismissed on withdrawal in accordance with the application contained in your letter dated 2 April 1992 and the Tribunal has no power to review the Decision under Rule 10(1)(a) of the rules of procedure."
Rule 10(1)(a) provides in these terms:
"A Tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that - (a)the decision was wrongly made as a result of an error on the part of the tribunal staff;"
No-one had suggested that the Tribunal staff had erred in any way.

(e) which provides a ground where:

"the interests of justice require such a review"

It might be thought that that would have been more appropriate in this case.Then there is para (2) of Rule 10 which provides:
"An application for the purposes of paragraph (1) of this Rule may be made at the hearing. [pausing there of course it was not] If the application is not made at the hearing, such application shall be made to the Secretary of the Tribunals at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."
Fourteen days after the date on which the decision was sent to the parties would take the matter until about 8 May, and as I have indicated, Mr Coppinger's letter was about two and half weeks after that and so was out of time. Whether the Tribunal were to look at the matter under 10(1)(a) or 10(1)(e) they would have to ask whether it was too late to do so. But the Tribunal do not appear to have considered whether to extend time, as they had power to do under Rule 12(2).The question for us therefore in those circumstances is - Ought we to allow this appeal to go forward to a full hearing at which both sides would be represented? We have sympathy for the Appellant. In our opinion this matter should go forward to a full hearing.The Appellant's Notice of Appeal should read as if it contained the following Grounds of Appeal:The Tribunal were wrong, and misdirected themselves on the law, in that:1.They failed to consider whether the interests of justice required a review and to hold that they did. Alternatively, failed to consider whether new evidence had become available which would justify such a course.2.They failed to consider whether to extend time for the application for a review, and should have done so.3.They failed to review or revoke their decision to dismiss the application, and to hear the application.