D'Sa v Norville Optical Co Ltd [1993] UKEAT 682_92_2003

EAT
D'Sa v Norville Optical Co Ltd
[1993] UKEAT 682_92_2003 · 1993-03-20
HIS HONOUR JUDGE HARGROVE The Chairman of the Industrial Tribunal sitting alone struck out the applications made by the Appellant for want of prosecution on 6th July 1992. The chronology seems to have been as follows:8th September 1989Appellant alleges she was dismissed.30th September 1989Application presented to Tribunal alleging unfair dismissal.6th November 1989Further application alleging unlawful discrimination. Application by Appellant to postpone hearing refused. Case withdrawn from the list on the basis that the parties had come to terms.27th November 1990Appellant's solicitors apply for the matter to be relisted. Listed for consideration on 21st December 1990 but vacated at the Appellant's solicitor's request.Appellant withdraws instructions from solicitors.2nd January 1991Appellant informed that if the matter was not resolved within 21 days the case will be listed for further hearing. Appellant requests that the case should not be relisted as she was seeking assistance from the Free Representation Unit.January 1991Respondent's solicitors allege Applicant's conduct vexatious.21st February 1991Respondent's application to strike out and the Appellant's application to transfer to London were both rejected. Case set down for hearing 19th and 20th June.10th June 1991Application by Appellant to postpone because of health and the requirements of a study course she was following. Application granted. Case to be re-listed when the Appellant confirms that she is fit to attend.8th July 1991Last letter to the Tribunal from the Appellant.19th August 1991Last letter from the Appellant to Respondent's solicitors.26th June 1992Formal notice of hearing.6 July 1992Appellant did not attend hearing. Struck out for want of prosecution.The Chairman found:
"12 I am very concerned at the staleness of these proceedings. More than two years has elapsed since they were brought and nearly five years has elapsed since the first of the matters which the applicant has complained of. It seems to me that the respondent must be gravely prejudiced in its defence of these allegations by now and I note that the applicant has made no contact either with the respondent or with the Tribunal since, at least, mid-August 1991. Moreover, she has not taken advantage of the opportunity to be heard, either in writing or in person, at this hearing."
In the light of the chronology set forth above it is hardly surprising that the Chairman took that view. It will be noted that on four occasions attempts had been made to list this case for hearing. An overall period of delay of some two years and nine months is very surprising indeed in a case before an Industrial Tribunal.On 10th August 1992 the Applicant contacted the Tribunal claiming that she had been on holiday from 25th June until 7th July 1992. She had not therefore received the notification of 26th July, had been unaware of the proceedings and therefore had not been in a position to make any representation. It is accepted for the purpose of this appeal that that was the factual situation. The Chairman refused to review the case because it was an interlocutory matter and he felt bound by Casella London Ltd v. Banai [1990] ICR 215. It is undisputed that he is correct in that approach. The effect is that there is no provision for the setting aside of orders made in the absence of a party by the court which made the original order. The only power of review by a Tribunal is in relation to final decisions. That necessitates a person aggrieved in these circumstances being forced to come before this Tribunal with all the attendant expenses, not only to the aggrieved party, but also to the respondent. A respondent would, in a case such as this feel that fate has treated him less than kindly when the original application was made, not on the respondent's application, but by the court of its own motion. There is an urgent need for this aspect of the Rules to be considered.The Chairman was exercising his powers under Industrial Tribunal (Rules of Procedure) Regulations 1985, SI 1985, No.16, where the Rules are set out in the first schedule. Rule 12 provides (omitting immaterial matters):
"(1) Subject to the provisions of these Rules, a tribunal may regulate its own procedure.

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

(a) - (e) ... (f)subject to the proviso below, on the application of the respondent, or of its own motion, order to be struck out any originating application for want of prosecution."No time is specified in the Rules for the service of such notice. The Appellant has contended that a period of 14 days should be required since that is the period of time required by Rule 5(1) concerning the time of hearings. We note that in O'Shea v. Immediate Sound Services Ltd [1986] ICR 298 , the period which was not commented upon adversely by the Court was one of seven days. We do not think it proper to supplement the Rules by adding our own view as to a definite time limit on the service of such notices and the period of time which should be given. The only guiding principle is the obvious one that the notice must be one which gives a reasonable period of time for a response. On that basis we can see no ground for criticising the period afforded here.The problem which arises is upon the precise meaning of the proviso to Rule 12. The Respondent argues that once a notice has been given and such indicates that the recipient should respond then the recipient has been given an opportunity to show cause. The fact that the recipient did not receive the notice in the sense that it did not come into her hands at a time when she was able to respond is immaterial. The Appellant's point is that unless the recipient is aware of the notice then it cannot be said that she has been given an opportunity at all. We consider that the latter interpretation must be the correct one. There must be both an opportunity as well as a notice.The Chairman could not possibly have been aware of the fact that the Appellant had not received the notice. It is argued that that places this Tribunal in a difficulty. There cannot be any fault on the part of the Chairman and it is said, further, that since he was exercising a discretion without fault there is no ground for reversing his decision. We bear in mind the well known admonitions to courts with appellate jurisdiction that interference with cases where the inferior court has exercised its discretion should occur in only rare cases. We do not find that analysis conclusive. Where there has been a defect in procedure even one which was unknown to the inferior court and indeed in this case could not possibly have been known to the Chairman, it is the defect in procedure which undermines the exercise of discretion.From the Appellant's point of view she has been faced with a decision of which she had no notice and has not had the opportunity to put her side of the case. The result is to inflict some injustice upon her viewed by the ordinary rules of natural justice. The Respondent contends that in weighing up whether the Appellant should be granted relief at this stage, this Court should look at the evidence now before us by way of correspondence and which illustrates that the Appellant is intent upon utilising proceedings of the Court in a vexatious manner. While it is correct that one of the letters placed before this Court by the Appellant speaks of her intention to prolong the litigation to the detriment of the Respondents, we do not consider that that is a matter which we can rightly take into consideration. It may well be that when the matter is reheard below such evidence may give colour to the delays that have taken place.In our view this case has highlighted not merely the defects in the Rules concerning the review of interlocutory decisions but also the Rules failure to specify times for serving notice of hearings in such cases as the present situation.We appreciate that, given these defects, there must be difficulties arising from the decision we have reached. What is a Chairman who is faced with a non-attending party on an interlocutory matter to do? If on each such occasion a Chairman was to adjourn the matter, this would be a recipe for endless delays, would place a weapon in the hands of dilatory applicants and might well produce chaos in some cases. It is to be hoped that upon non-attendance Tribunal staff would use their best endeavours to contact the absentee forthwith and endeavour to ascertain the reason for the absence. But we can see no fault in the Chairman continuing to hear and determine the case as occurred in this instance.We therefore allow the appeal and remit the matter to the same Chairman for adjudication.