Waugh v LMC Drains Ltd & Anor [1993] UKEAT 542_92_0503

EAT
Waugh v LMC Drains Ltd & Anor
[1993] UKEAT 542_92_0503 · 1993-03-05

JUDGE HARGROVE QC:

This ill fated case returns yet again to this Court. There was an originally reserved decision, reasons being given on the 9th February 1990 that the Industrial Tribunal had jurisdiction and there was an appeal to this Court on the 5th June which was dismissed. There was a further hearing, which is material in this case, on the 19th September resulting in a finding that the Appellant had been unfairly dismissed, but that he contributed to his dismissal by 50%.The parties agreed that they would endeavour to agree compensation. The Order contains this phrase:
"Such agreement is to be concluded within 28 days of entering the register of the decision. Liberty to apply within 14 days thereafter if agreement has not been reached."
After an exchange of correspondence between solicitors, the Appellant's solicitors wrote on the 11th December 1991, both to the other solicitors and to the Tribunal asking for a date to be fixed for determining remedy. At first the Chairman accepted that approach. The Respondent solicitors then took the point that as six weeks from registration had expired on the 28th November there was no jurisdiction. The Tribunal regarded this as a matter of jurisdiction and they considered the matters put on both sides. The Respondents' argument is that because there has been no appeal; no application for review; no application to extend time; no return to the Court within 42 days and no agreement, the case was therefore dead. It is said that if there was to be an application to extend time it had to be in the form set out in Rule 13.The Tribunal, after as I have indicated, an extensive consideration of the arguments approached the problem in this way:
". . . employment legislation has been carefully designed so that resolution of differences between employers and employees shall not only be fair but also speedy and efficient. Because of that statutory time limits have been imposed at various stages for the taking of various steps. In most cases (but not all) Industrial Tribunals have discretion to extend those time limits. Over the years there has been a considerable quantity of case law which gives Industrial Tribunals guidance as to how that discretion should be exercised.
Because of that requirement for fair, speedy and efficient disposal of cases the practice of leaving the parties to settle compensation after a Tribunal has made a decision on liability time limits on settlement are generally imposed. In the instant case the time limit imposed by the Tribunal was within 28 days of entry in the register of the decision. In the event of failure to reach settlement a further 14 days was allowed to enable either of the parties to apply for the case to be restored. The applicant's solicitors made their application after that further time limit elapsed. That situation has not been met before by the Tribunal as constituted today and, as has been noted, it has neither found nor been referred to any case law to guide it in its deliberations."after dealing with certain submissions the decision continues:
"Having considered the matter in the whole the Tribunal has decided that the point is one of jurisdiction. There must come a time where every decision must become final. In the instant case finality occurred on 28 November 1991."
It then indicates that it has looked at the case of Aberdeen Steak Houses v. Ibrahim [1988] ICR 550 and proceeds:
"On 19 September 1991 the Tribunal made a final decision. Neither party has appealed against that decision. Nor has either party applied that it should be reviewed. The Tribunal has concluded that it cannot reopen it. It would be stretching informality to the utmost extent if the Tribunal were to attempt to do so. It would be beyond the reasonable expectation of the parties that liberty to apply could be extended indefinitely in any litigation, otherwise no case would ever be concluded. It would be contrary to public policy for parties to litigation to be exposed to the risk of litigation being continued after a final decision has been made. For that reason the Tribunal has decided that it has no jurisdiction to hear the application by the applicant to determine remedies."
Although it is not essential to the decision we have reached we find it difficult to comprehend how it can be said that, with a decision concerning remedies still outstanding, a Court can be said to be functus officio in relation to that case.One starts with a proposition which was reiterated in Slaughter v. C Brewer & Sons [1990] ICR 730, that a Tribunal is master of its own procedure. It has been said that there is some parallel to be drawn between those cases where time limits are imposed by statute. It is said that in that case as in this case there would be right for the litigant to turn to his solicitor, or adviser who has given his negligent advice, to obtain recompense. In our view, such a parallel can not be drawn here, the statutory time limits are mandatory. The time limits imposed by the laws of procedure are always those which are subject to the control of the Court and the discretion of the Court except in certain specific cases.We have been referred to the procedure which is followed in the High Court and in the County Courts. One should make it quite clear that there is a method of bringing to an end matters which the Court believes require finality. Litigants on both sides can be placed upon warning by the form of the Order indicating, for example, that no further application can be made; or making an "unless" Order; or by indicating that in a particular case it is intended that the time limit should be absolute. None of those things occurred here. Even in the High Court it is noteworthy, and here one can take page 18 of the White Book as the starting point:
"Where a court makes an "unless" order or conditional order that a party is required to do and act within a specified time but if the order to do that act is not complied with within the specified time, the court nevertheless, retains the power to extend the time within which such acts should be complied with."
The case of Samuels v. Linzi Dresses Ltd [1981] 1QB 115, a case which is too well known to require further quotation, is the standard authority. Even when an order has not been complied with it can not be said that the case is dead or defunct and that has been accepted by both the High Court and the County Court for well over a decade.Should that approach apply in this type of case? Even in these Tribunals it is right to say that the mastership of procedure is still a principle which must be considered. The start of the consideration of what the Court is entitled to do in this type of case is Rule 12(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985, which provides:
"Subject to the provisions of these Rules, a tribunal may regulate its own procedure.

(2)A tribunal may, if it thinks fit, -

(a)extend the time appointed by or under these Rules for doing any act notwithstanding that the time appointed may have expired"The Tribunal was therefore in a position, had it so wished, to consider whether an extension of time should take place and it is fair to say that Mr Fenwick made an oral application at the time, which did not of course comply with Rule 13.Again, it is not essential for our decision, but we doubt whether Rule 13 applies to the type of Order made here. It seems at first sight Rule 13(1) deals only with those Orders for which time is set forth under the Rules themselves. In our view the result of the position was not that the case was dead, but that a time limit had been exceeded. The Court below was in error in taking the view that they had no jurisdiction.Accordingly, we shall allow this appeal and remit the matter to the same Industrial Tribunal for consideration to be given to an application for extension of time. We say at once that we have not of course gone into the merits of the reasons why there was a 13 day error in bringing this matter before the Courts that is entirely a matter for the Industrial Tribunal to consider in the exercise of its discretion.