Mean Fiddler Ltd & Anor v McHugh [1994] UKEAT 1000_94_2710

EAT
Mean Fiddler Ltd & Anor v McHugh
[1994] UKEAT 1000_94_2710 · 1994-10-27

JUDGE HULL QC:

This is an appeal to us from a Decision of the Industrial Tribunal sitting for London (South). The case is a complaint by Mr McHugh against his former employers, The Mean Fiddler Ltd and later The Grand Limited. It was, apparently, continuous employment or at any rate that was what was alleged. The Decision of the Industrial Tribunal, which was notified on 17 October and by a letter of 25 October, was to dismiss the application for an adjournment.The history has been set out, together with the relevant documents, in a chronology, for which we are very grateful, and Mr Vineall for the Respondents below, whose application it was to adjourn, has addressed us on the basis that this is ex parte and has invited our attention very fairly to matters which tell in the opposite direction. He says that an adjournment was required, if I can use the Latin phrase, ex debito justitiae; that is to say, if you look at the balance of justice and balance the injustice to one party against the injustice to the other, of the two possible alternatives of granting the order or refusing it, it is quite plain that the balance must come down in favour of the Respondents to the complaint; because he says, and this is the substance of it, the tribunal cannot do justice without hearing the evidence of Mr Power. He is the Managing Director of the Respondents and he is the dismissing officer.What happened apparently was that there was an altercation and very shortly afterwards Mr McHugh, the Applicant to the Industrial Tribunal, was dismissed. We have his application to the Tribunal. What he says in that application is this:
"I worked for the Mean Fiddler organisation for over three years. During that time I had not received any formal warnings or complaints about my work or conduct.
On 14th July 1993 I was dismissed. The day before I had been to one of the Mean Fiddler venues as a customer. I had a disagreement with my boss's sister, and I was forcibly removed from the premises. I went into work next day and rang Eileen, who was second in command of the company. I rang to complain about the treatment I had received. She said she would try to sort it out. Then she phoned my manager to tell me I was suspended, and I should meet with her the following day. Later that night my manager phoned me and said that Mr Power, the managing director, had told her to sack me".So it appears that others carried out the sacking but it was Mr Power who took the decision. Mr Power is not alleged, apparently, to have been present at the altercation which led to all this, but he was the decision taker. Therefore his evidence would normally be considered at any rate material; whether it would be of critical importance is a different matter.It is of course for the employers, on a complaint of unfair dismissal, to show what the reason was for the dismissal. It may or may not be that that would be shown perfectly plainly by the evidence which is available about the altercation. As I say, the application is simply on the ground that Mr Power is abroad on a business trip.The history of the matter is shown by the chronology and by a bundle of documents which has been laid before us. The first date for a hearing was Tuesday, 15 March and that was notified to the parties by letter dated 17 February 1994. Mr Power wrote to the Regional Secretary on 18 February saying:"I would like to attend this hearing and be represented but I am away until the 14th May".So the matter was adjourned at his request. On 24 February, and this, we think, is material, the Wandsworth Law Centre, who are representing Mr McHugh, wrote and said they wanted further and better particulars and they also wanted discovery of certain documents which they specified, apparently a perfectly proper request. Those were not provided and so, in due course, there was an Order on 21 March for further and better particulars and discovery. That was made on 21 March 1994. That has not been complied with from that day to this. We are not given any reason why it has not been complied with.Mr McHugh, through his advisers, sought an Order striking out the answer and the Chairman declined to do that on paper, but said that that matter could be raised at the hearing and of course it may yet be. But there has been a complete failure to comply not merely with the ordinary courtesies and fairness required of a party preparing for litigation, but a contempt of the Tribunal's Order and a non-compliance without any explanation whatever.On 13 August 1994, there was a Notice of Hearing for 9 September 1994, and it was adjourned at the request of the Applicant, and in the letter which was sent notifying the adjournment on 17 August, there was a request to the company to send any dates to avoid. That request again was ignored. No dates were sent.On 4 October, Notice of Hearing was sent for 28 October 1994. Pausing there, I would just comment in passing that the parties were lucky indeed to be able to get a date so near in the future. Our information is that all the London Tribunals and in particular, London South, are under the greatest pressure and long adjournments are continually occurring simply because of the pressure on them, hence a large element in their reluctance to adjourn cases unless it is shown that nothing else will do.There was a letter written on 7 October, page 24 of our bundle, by solicitors newly instructed by the Respondents to the application, saying:

"We are instructed by the Mean Fiddler Limited and the Grand .... [and saying]

We shall be glad if you will accept this letter as application on our clients behalf to postpone the above mentioned hearing. Mr J.V. Power, the principal witness will be absent abroad on pre-arranged business from 15th October to 5th November next. He will thus be abroad at the time of the hearing".It is a matter which we note with some regret, and which is certainly a part of the appeal to us, that it was not possible to reply to that until 17 October and then there was the letter I have already referred to in which it was said:"....... a Chairman of the Tribunals .... refuses your request. The Chairman instructs me to say that this case has been going on far too long".We respectfully agree with the Chairman. It has been going on too long. Going back to the letter of 7 October at page 24. The solicitors, if they knew anything at all about Industrial Tribunals, must very well have realised that there was a real risk that that request would be refused. And since we are told that Mr Power habitually goes abroad because he is a businessman - indeed he was abroad for more than two months, I think, in the Spring which led to that first adjournment - it would be quite elementary, in the circumstances, to say, "well if there is any danger of the hearing going on whilst he is not there, we must at any rate have a signed proof of evidence from him and preferably an affidavit sworn in the matter, sent immediately to the other side with a request to agree it and if that agreement is not forthcoming, to be produced at the Tribunal hearing, if it is not postponed, so that the Tribunal can be told:
"This is the evidence. We ask you to accept it on paper with all the reservations there must be about evidence on paper, but to accept this. You are not bound by the strict rules of evidence. We ask you to look at this"
. That would be absolutely elementary.Apparently, nothing of the sort was done and when I asked Mr Vineall whether he could show us a proof of evidence of Mr Power he told us that even now, on the eve of the hearing, there is no such document. These proceedings have been going on for more than a year.It does, with all respect, seem to us to be a quite extraordinary thing, if Mr Power's evidence is indeed critical, that there should be no proof of evidence. It would be the absolute centre of the case if it was being prepared properly and it is quite extraordinary that he should not have made such a proof of evidence.Now we are asked to interfere with what is undoubtedly the discretion of the Chairman of the Tribunal as to whether to adjourn the matter. He had in mind, as he was well entitled to, the fact that this case had already been twice adjourned and we have not the slightest doubt that he had well in mind the pressure on his own Tribunal. He was also, in our view, well entitled to take into account the fact that there had been a blatant and unexcused non-compliance with the Tribunal's orders which might very well fall to be dealt with at the outset of the hearing.In those circumstances, on the face of it it was a refusal to adjourn for which, to say the least, there was plenty of justification. But we would add that this was an interlocutory matter and having regard to all that we have said so far, it must be perfectly obvious that there are two possibilities at least which arise. The first is that when the hearing comes on the application to strike out will be renewed and will be successful, in which case that will be the end of the matter; or it may very well be that the case will continue - either no such application will be made or it will be unsuccessful.If the case continues and it appears that Mr Power is not a witness to any of the material primary facts, but he is the dismissing officer, the primary facts at any rate can be laid before the Industrial Tribunal. If it appears then that Mr Power's evidence is essential to their decision, then the application can of course be renewed and it can then be explained why there has been a non-compliance with the Tribunal's orders and what, if any, prejudice has been suffered by that.It can be explained to the Tribunal that it is now obvious, as it might not be before, that the witness's evidence is crucial and one can well imagine that if the Tribunal has heard by then all the other evidence, the Tribunal would yet think it right to adjourn the matter. They would know by then all about the case, in so far as they could be told about it without calling Mr Power, and they would have to decide for themselves whether Mr Power's evidence was indeed critical to their decision and whether, if so, he should be indulged yet again by them.However that may be, we are quite satisfied that this was a decision which was well within the discretion of the learned Chairman. It does not appear to us that the Chairman acted upon any false principles or that his decision is, in any way, perverse.It is not for us to say whether we would have reached the same decision, but quite plainly it is not a decision which should cause anybody acquainted with the facts of this case and the pressure on Tribunals the slightest surprise. It is one which many people would think was, in the circumstances, quite inevitable.It is not up to us, as I say, to say whether we agree or disagree with the decision. It isup to us to say whether we think that it is a decision which shows an error of law and we are quite satisfied that it does not show an error of law and accordingly this appeal is dismissed.