Reddington & Ors v Park Communications Ltd [1994] UKEAT 604_93_1201

EAT
Reddington & Ors v Park Communications Ltd
[1994] UKEAT 604_93_1201 · 1994-01-12
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Industrial Tribunal held at London (North) in June 1993. The appeal is against an order made by the Tribunal after hearings held on the 3rd, 4th and 7th June 1993 that the second Respondents, Park Communications Limited, formerly known as MISLEX (8) Limited, should be disjoined and dismissed from the proceedings commenced by an Originating Application presented by the Appellants on the 9th May 1991.That Originating Application claimed unfair dismissal and redundancy against only the first Respondent. The Respondents Park Communications Limited was joined in the proceedings by order of the Chairman of the Tribunal in October 1992. The joinder was made on an ex parte written application by the solicitors acting for the Appellants and was notified for the first time to Park Communications Limited in October 1992.After notification Park Communications entered a Notice of Appearance and made an application to the Industrial Tribunal to be disjoined. A preliminary point was taken by the Appellants that the Tribunal had no jurisdiction to set aside the Joinder Order made by the Chairman ex parte. That preliminary point was heard on the 3rd June 1993. The Tribunal held that it did have power to consider the application for disjoinder. The Tribunal went on at hearing on the 4th and 7th June 1993 to hear the argument on the merits of the application. After hearing full argument it made the order for disjoinder.The Appellants appealed by a Notice of Appeal dated the 30th July 1993. The grounds of appeal were three. The first was that the Industrial Tribunal had erred in law in holding that it had power under the Industrial Tribunals (Rules of Procedure) Regulations 1985 to hear the application to reverse the Chairman's order. That is the only ground persisted in on this appeal, I should mention the two further grounds which are no longer pursued.The second ground was that, if the Industrial Tribunal had jurisdiction to hear the application of the Respondents to be disjoined, it erred in law or misdirected itself in concluding that the failure of the Appellants to join the Respondents to the proceedings before the expiry of the limitation period of three months was not a "genuine mistake" within the meaning of Cocking v. Sandhurst (Stationers) Ltd [1974] ICR 650.The third ground was that the Industrial Tribunal had erred in law or reached a decision which no reasonable industrial tribunal could reach in deciding that, in the exercise of its discretion, the Respondents should be disjoined and dismissed from the proceedings.The only point on this appeal is one of jurisdiction. The bold argument advanced by the Appellants is that, on the proper construction of the 1985 Regulations, the industrial tribunal had no power to make an order, disjoining and dismissing from the proceedings the Respondents made a party on a written ex parte application to the Chairman of the Tribunal.The basis of the argument is that the industrial tribunal, as the creature of statute, only has power to do what Parliament has authorised it to do either in the primary legislation, which set up industrial tribunals, or in regulations made under delegated statutory powers.Mr Linden submitted that none of the Rules governing the procedure of the Industrial Tribunal empowered it to make the order for disjoinder. His broad submission was that the only way in which the order for Joinder made by the Chairman could be discharged or reversed was by an appeal to this Tribunal. His detailed submissions were, in brief, these: first, the Chairman had power to make the order. Rule 12(4) provides that:
"Any act other than the holding of a pre-hearing assessment under Rule 6, the hearing of an originating application or the making of an order under Rule 10(1), required or authorised by these Rules to be done by a tribunal may be done by, or on the direction of, the President or the chairman of the tribunal, or any chairman being a member of the panel of chairmen."
Rule 14(1) provides:
"A tribunal may at any time either upon the application of any person or, where appropriate, of its own motion, direct any person against whom any relief is sought to be joined as a party to the proceedings, and give such consequential directions as it considers necessary."
The Chairman had, within his powers, exercised the power of joinder under Rule 14(1). Secondly, Mr Linden pointed out that there were no express provisions in the 1985 Regulations which enabled the full Tribunal to undo what the Chairman had done. Thirdly, he relied on two principles to be borne in mind when construing the Rules. The first was the principle that an industrial tribunal should not sit on appeal from its own decisions and, secondly, that where Parliament has enacted specific statutory rules which deal with similar or related circumstances, but do not go so far as to confer the power upon which the party seeks to rely, it can be inferred that Parliament did not intend to confer the relevant power on the industrial tribunal. With those principles in mind he referred to the Rules. He referred to Rule 4(2) which confers power on the tribunal to set aside certain kinds of orders made on ex parte applications: Orders relating to the furnishing of particulars, to discovery of documents and the attendance of witnesses. Mr Linden pointed out that there was no reference in Rule 4(2) to the setting aside of any ex parte order for the joinder of a respondent. In accordance with the second of his general principles he argued that, as there was no express power, it was not intended by Parliament that there should be any power to set aside such an order.He also referred to Rule 14(2) which provides for disjoinder in circumstances which do not apply to this case. Rule 14(2) provides:
"A tribunal may likewise, either upon such application or of its own motion, order that any respondent named in the originating application or subsequently added, who shall appear to the tribunal not to have been, or to have ceased to be, directly interested in the subject of the originating application, be dismissed from the proceedings."
Mr Linden submitted that that Rule could not be relied on here. It had not been relied on by the Industrial Tribunal in coming to its conclusions because it could not be said here that it appeared to the Industrial Tribunal that this Respondent was not, or had ceased to be, directly interested in the subject matter of the Originating Application. It might be directly interested as the transferee of the relevant business. Mr Linden also correctly pointed out that Rule 10, which enables a tribunal to review its own decisions and to revoke them, does not apply to the case of an interlocutory order. Rule 10 only confers power to review a "decision" of the tribunal. A decision is defined in the Interpretation Regulation 2 as:

"an order (other than an interlocutory order)"

So interlocutory orders are not subject to review under Rule 10. That was made clear by the decision of this Tribunal in Casella London Limited v. Banai [1990] ICR 215. Mr Linden submits that there is no other rule in these Regulations or elsewhere which enabled the Industrial Tribunal, in the circumstances of this case, to make an order that a party joined ex parte should be unjoined by a full tribunal.We have no hesitation in rejecting these submissions. We have reached the conclusion, both on the provisions of the Rules and as a matter of general principle and practice, that the Industrial Tribunal had power to set aside such an order. It is unnecessary for a party, adversely affected by such an order, to appeal to this Tribunal without first seeking an order of the Industrial Tribunal to set it aside. Briefly our reasons for this conclusion are these. First, any ex parte order made by any court or by any tribunal is, in its essence, provisional. It is made on the application of one side without notice to the other side. The order made on an ex parte application is made on hearing the submissions of law and fact of one side only. It is not the practice of any court or tribunal to make enduring orders of that kind which the tribunal or Court cannot undo. Sometimes the right to discharge such an order is spelt out in the order itself. It was conceded by Mr Linden that industrial tribunals making ex parte orders frequently include in them an express provision that the order is subject to objection from the party affected by the ex parte order. Some ex parte orders contain express provisions that they are subject to an application by the party adversely affected to set aside the order. The Rules of the Supreme Court, for example, provide in order 32, Rule 6 that the Court may set aside an order made ex parte. That makes it clear that it is not an appropriate route to go to the Court of Appeal. You go back to the tribunal which made the ex parte order. That provision in the rules of the Supreme Court is of relevance in this Tribunal and in industrial tribunals, since, as was held in the case of Hanks v. Ace High Productions Ltd [1978] ICR 1155, the practice of the industrial tribunals and the Employment Appeal Tribunal, should, in the absence of any clear direction from the Regulations, follow the practice in the High Court and the County Court where that is possible. We are of the view that that general principle should be borne in mind by industrial tribunals in relation to ex parte orders which they make. Mr Linden submitted that that did not provide an answer in this case because, when one looked at the detailed Rules there were clear indications that the Tribunal could not undo the Chairman's Order. Those clear indications were, in particular, in 14(2) which deals with disjoinder and Rule 4(2) which deals with circumstances in which ex parte orders can be discharged.There are, however, other strong indications in Regulations, relied on by the Industrial Tribunal in this case, which, in our view, give the tribunal power to set aside an ex parte order for the joinder of a respondent. We agree with the reasoning of the Tribunal. In coming to its decision the Tribunal held that it had power to consider the application of Park Communications that they should be disjoined. The decision sets out the background history of the proceedings. It refers to the relevant rules and to a number of authorities cited to the Tribunal. The Tribunal concluded in paragraph 24 onwards:
"24. We think that our discretion is derived from Rule 8 provided `proper grounds' are shown. A basis for making an application would arise where a 2nd Respondents could show that they would suffer an `injustice or hardship' if the order joining them stood. It is not an adjudication by way of an appeal from a decision already made by a Chairman. It is a fresh determination by a Tribunal of whether they should be de-registered after having heard argument from both sides.
25. If we are wrong about the rule under which we have this power we think that Rule 14(1) is sufficiently widely drawn to empower us to give leave to the 2nd Respondents to make representations. After conferring discretion on the Tribunal to join a party, it goes on --

`and give such consequential directions as it considers necessary'

26. We accept that it is not necessary for the same Tribunal (or Chairman) which (or who) made the initial order to give the consequential directions as well, or that it has to be given at the same time. No such restriction is placed in the rule. In Rule 10(4) which deals with Reviews, the same Tribunal has to adjudicate on a review (except in special circumstances).27. It seems to us to be open to this Tribunal to give a `consequential direction' that the 2nd Respondent should have the opportunity of making representations on why they should be disjoined.28. Accordingly we find under both rules we have power to hear argument from 2nd Respondents about why they should be disjoined and dismissed from these proceedings. It would meet the justice of the case."We agree with the conclusions of the Tribunal.The particular Rules that are relevant are first, Rule 8(1) which provides:
"The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings; it shall so far as appears to it appropriate seek to avoid formality in its proceedings and it shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law."
It is also relevant to bear in mind the miscellaneous powers of a Tribunal conferred by Rule 12(1) which provides that, subject to the provisions of these Rules, a tribunal may regulate its own procedure.Procedure before Industrial Tribunals was intended to be informal, cheap and expeditious. The Rules of Procedure must be construed with those purposes in mind. It would not further or serve those purposes to insist that an ex parte order for joinder should be subject to an appeal to this Tribunal with no power on the part of the Industrial Tribunal itself to consider an application to set it aside. An appeal to this Tribunal would halt the investigation into the merits in its tracks, and unfortunately inflict substantial delay on the further progress of the proceedings. The Appellants' argument would also have the consequence that a chairman alone would be able to make an order which could not be upset by a full tribunal consisting of the two lay members as well as the chairman. We hardly think that that could have been intended when the purpose of setting up industrial tribunals with a majority of lay members, was to provide an industrial jury to hear the cases.The case is not, however, determined only by generalities of that kind. We have come to the conclusion that Rule 14(1) enables a tribunal to hear an application to set aside a joinder order made ex parte. Rule 14(1), which we have already cited, falls into two parts. The first part provides that the tribunal can direct a person against whom relief is sought to be joined as a party. The second part of 14(1) provides that the tribunal may give such "consequential directions" as it considers necessary. In our view, an application to disjoin a party who has been joined, is an application for a direction which is "consequential" on the ex parte order for joinder. It is a consequence of an ex parte order for joinder that the person joined may seek directions to be disjoined. Mr Linden's answer was that the second part of Rule 14(1) can only properly refer to directions contained in the order for joinder. Those directions must be given at the same time as the order for joinder. It does not apply, he submits, to directions given subsequently. It therefore could not apply to a later direction for disjoinder. This cannot be a correct construction of Rule 14(1). It would give rise to absurdities of a kind that Parliament could not possibly have intended. One consequence would be that it would not be permissible under 14(1) for an order to be made one day joining a party and for an order of the tribunal's own motion to be made the next day providing that the order of the previous day should be expressly subject to a liberty on the part of the Respondent to apply to be disjoined.We have made general observations relevant to the construction of these Regulations. It would however, be sufficient to uphold the decision of the Industrial Tribunal on jurisdiction simply on the proper construction of Rule 14(1).For those reasons we shall dismiss the appeal. The Industrial Tribunal has correctly held that it had jurisdiction to hear the application. As the Appellants no longer pursue the second and third grounds of appeal there is no need to consider the arguments of law and fact on the merits of the application to disjoin.The appeal is dismissed.

Judgment on Costs

We will deal briefly with the application made by the Respondents consequent on our decision to dismiss this appeal. The Respondents apply for the costs of this appeal to be paid by the Appellants. The Tribunal has jurisdiction to make an Order for Costs under Rule 27 of the Employment Appeal Tribunal Rules. That provides:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
Mr Lynch submitted in support of his application that there had been unreasonable conduct in bringing this appeal. What the Appellants were trying to do was described by him as an unmeritorious attempt to hang on to the benefit of an ex parte order even after there had been a full argument and a decision of the Industrial Tribunal on the merits. This was of particular concern to his clients who were in a desperate financial position. He gave us an estimate, in response to a question from a Member of the Tribunal, that the costs of the appeal were in the region of £8,000 to £10,000. It has been agreed between the parties that costs would not be sought in relation to the abandonment by the Appellants of the second and third grounds of appeal.In response Mr Linden submitted that there had been no unreasonable conduct to bring this case within Rule 27(1). He outlined to us some of the circumstances in which his clients had been dismissed, and which formed the foundation of their claim.We do not regard the circumstances of dismissal or other matters of that kind going to the merits of the case as relevant to this application which relates to the costs of an appeal on a procedural point. In our view, there was unreasonable conduct in bringing this appeal. The subject matter of this appeal was an ex parte Order made by a Chairman in relation to the joinder of the Respondents. When the Respondents sought to apply to the Industrial Tribunal to discharge an Order, which we have already described as essentially provisional in nature, the Respondents were met first with the objection that there was no jurisdiction to discharge it and then secondly a two day hearing in relation to the way in which the Tribunal should exercise its discretion.The Industrial Tribunal found in favour of the Respondents on both points. There was a full investigation of the facts and the law. Instead of accepting that decision the Appellants attempted, by a hopeless argument on jurisdiction to cling to the benefit of the ex parte Order. We regard that as unreasonable conduct within the meaning of Rule 27 which enables this Tribunal to order the party at fault to pay the whole or part of the costs. Most of the costs were incurred on this point.On the basis of the estimate of the Respondents' costs we order that the Appellants pay the sum of £5,000 towards the costs incurred by the Respondents in relation to this appeal.