Charndown Traffic Ltd v Rice [1993] UKEAT 642_92_2403

EAT
Charndown Traffic Ltd v Rice
[1993] UKEAT 642_92_2403 · 1993-03-24

JUDGE PEPPITT QC:

This is an appeal from the refusal by the Liverpool Industrial Tribunal on the 10th April 1992 to extend the Appellants' time for service of its Notice of Appearance under Regulation 13(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985. The application was made on the day of the hearing of the Respondent's claim. Upon its refusal the Industrial Tribunal proceeded to hear the claim, found unfair dismissal proved and awarded compensation of £10,000.The facts behind the Appellants' application for an extension of time can be stated shortly. The Respondent's Originating Application was entered on the 25th October 1991; on the 6th November 1991 the Liverpool Office of Industrial Tribunals sent a copy of the Respondent's application to the Appellants together with the standard form of letter, IT2, in which the Appellants were informed that they were required to enter an appearance within 14 days. That letter also informed the Respondents that if they did not send the form or letter as requested they would not be entitled to take part in the proceedings except to apply for an extension of time to enter an appearance. No appearance was entered by the Appellants in response to that letter. On the 2nd January 1992 a further letter was sent to the Appellants, by recorded delivery, in which they were reminded of the entry of the Respondent's Originating Application and informed that by then the statutory time limit for entering an appearance had expired. The letter went on to say that whether or not they intended to resist the application, and if so on what grounds, that time, as I have indicated, had expired but that it might still be possible for the Tribunal to accept a late Notice of Appearance. The letter stated that if they wished to take part in the proceedings the Respondents should return the Notice of Appearance duly completed to the Liverpool Office of Industrial Tribunals immediately. Still the Appellants failed to enter an appearance. On the 26th February, nearly two months later, the file was marked "Appearance not Entered" and a written notice sent to the Respondents, and indeed also to the Applicant's representative, informing them that the case would be heard at the Liverpool Office of Industrial Tribunals on the 10th April 1992 at 9.45 am. Again the Appellants failed to enter an appearance to the claim but by letter dated 16th March 1992 a letter was sent signed by the Appellants' Assistant Secretary reading as follows:
"Please be advised that Mr J K Trotter - Managing Director, will be attending the hearing relating to the above to be held on 10th April 1992 at 9.45 am.
We confirm copy documentation will be forwarded to the Tribunal and to the applicant 7 days or more before the hearing."The final stage in the interlocutory events occurred on the 18th March 1992, two days later, when a letter was sent to the Respondents reading as follows:
"A Chairman of the Tribunals has instructed me to point out that you have failed to enter Notices of Appearance in the above cases and you should do so by return of post."
So yet again the Appellants were reminded of their obligation to enter an appearance to the claim and offered the opportunity to do so albeit that by now time had long expired. In the event the Appellants neither entered an appearance nor provided the promised documentation either to the Tribunal or to the Respondent.Against that background Mr Trotter did in fact appear before the Tribunal on the 10th April. He was invited by the Chairman to explain the continuing failure of his Company to comply with the Industrial Tribunal rules. He gave a number of reasons; the Company had had cash-flow problems which required him and senior members of the staff to work long hours to achieve a re-financing agreement to keep the business solvent; that either he or the Company Secretary had been ill; that generally the executive of the Company were devoting themselves to keeping the Company afloat rather than matters such as this. There is some dispute as to precisely what was and what was not said to the Chairman but it seems to us that it matters little because Mr Brunnen, on the Appellants behalf, accepted that the Industrial Tribunal took all reasonable steps to afford the Appellants an opportunity to enter an appearance. Furthermore Mr Brunnen, if not accepting, certainly did not strenuously contend to the contrary, that the reasons advanced for the default by Mr Trotter fell some way short of excusing it. We agree. We consider this a flagrant breach of the rules persisted in over a period of some five months in a jurisdiction in which speed and simplicity of remedy is one of its hallmarks.Instead Mr Brunnen relied upon a dictum of Mr Justice Phillips in Ryan Plant v. Price [1976] ICR 424 an appeal to the Queen's Bench Division from the Cardiff Industrial Tribunal. The somewhat complicated facts of the case are not relevant for our purposes but at page 429B Mr Justice Phillips discussed a case not dissimilar to the present in the following terms:
"The real question, I think, is this: what is shown, when one compares what would have happened if the application had been granted with what has happened having regard to the fact that it was not granted? I have had cited to me, and reliance is placed on, Atwood v. Chichester [1878] 3 QBD 722 , and I accept that, as a general principle, where a party is in default, as a result of which perhaps a judgment has been given against him, and even more so when the only default is in failing to enter an appearance, he ought to be relieved from his default, if that can be done with justice to everybody concerned. One therefore has to weigh up the whole of the circumstances."
On the assumption that this is the test can we say that the Tribunal erred in law; was perverse; or that its decision was obviously wrong? Mr Brunnen says that we can because to shut out the Appellants from resisting a claim which ultimately proved to be worth £10,000 must have created an injustice to them which far outweighed any injustice which the inevitable adjournment of the hearing would have caused to the Respondent.In our view the question is not so straightforward. The Industrial Tribunal quite clearly was wholly dissatisfied with the excuses put forward by the Appellants and regarded any prejudice which they might suffer as a result of a refusal of their application as largely self induced. On the other hand the Respondent had his tackle in order and was present legally represented to advance a claim for which he had been waiting since his dismissal in August 1991. He had no doubt keyed himself up to expect a decision on that day. If the application had been granted an adjournment would have been inevitable and we do not know how long the Respondent would have had to wait until he obtained a fresh date. We consider that in reaching its decision the Industrial Tribunal was entitled to take into account, as one of the relevant circumstances, the gravity of the Appellants' default when considering the question of injustice. There was a retirement of 15 minutes before their unanimous decision was announced during that time no doubt they would have considered the overall justice of the case and all the circumstances surrounding it. In arriving at a unanimous decision adverse to the Appellants the Industrial Tribunal took a strong line but we do not feel able to say that the exercise of its discretion was perverse or plainly wrong. Accordingly this appeal must stand dismissed.Mrs Garner then made an application for costs which was rejected by the Appeal Tribunal.