Perera v Vallance [1994] UKEAT 639_92_1011

EAT
Perera v Vallance
[1994] UKEAT 639_92_1011 · 1994-11-10
MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal by Mr I M Perera against the Decision made by the Chairman of the Industrial Tribunal at London (South) at an Interlocutory Hearing on the 22 July 1992.On the Hearing today, Mr Perera has not attended or been represented. He has submitted to the Tribunal, a 57 page documentary submission for us to consider on the Appeal, with an attached current medical certificate dated 15th October 1994, certifying that he is suffering from acute anxiety, depression and RSI. That documentary submission was received in the Tribunal on the 28th October 1994. On the 4th November an Addendum to that documentary submission from Mer Perera was received.The Respondent to the Appeal, Mr Vallance, the Chairman of British Telecom has been represented by Mr Clark. In the absence of Mr Perera, we have proceeded with the Hearing of the Appeal on the basis of his documentary submissions, and on the Respondents submissions summarised in Mr Clark's Skeleton Argument and amplified by him in oral submissions.The order appealed against was an order dismissing the originating application, presented by Mr Perera on the 14th April 1992. He complained that he had been discriminated against, contrary to the Race Relations Act 1976 , and that he had suffered unfair and unlawful treatment. The basis on which the Chairman made the Order on the 22nd July dismissing the Application was that there had been a refusal by Mr Perera to comply with an order for him to supply further particulars of his complaint of Racial Discrimination.The originating Application was completed in section 10 with details of the matters of which Mr Perera complained. It is clear from reading those details that, although they are very wordy, they are lacking in relevant detail. For that reason, an application was made by the Respondent for an order for particulars. Such an order was made on the 5th June 1992, in the following form:
"The Applicant is hereby ORDERED on or before [then through a typographical error it is incorrectly stated 25th May 1992, when what was clearly intended was 25th June 1992] to furnish in writing to the Respondent's solicitors the following further particulars of the originating application and to send a copy of such particulars to this Office: {Particulars are set out in a Schedule as follows]:

SCHEDULE

"Of the allegation of racial discrimination:
State precisely the grounds of the complaint specifying the conduct complained of, giving full particulars of dates and/or persons concerned and identifying the racial basis of the case."[And then a notice attached]:1.Failure to comply with this Order may result in the application being dismissed before or at the hearing.2.The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but can only do so for good cause."Mr Perera was notified of the order. He wrote a letter to the Tribunal on the 14th June 1992 setting out his reasons why he respected the order and recognised it as a standard provision, but, he said, it was nevertheless inappropriate and impractical in the present context to provide those particulars. He set out lengthy reasons and did not provide the particulars. That was followed by a further letter dated 23rd June 1992, in which he made it clear that he was not going to supply the particulars.He recognises in his addendum to his documentary submission to this Tribunal of the 2nd November, at page 61, that it is an legitimate right for the Respondent to have an order for particulars, but goes on to say that it is in the context of a vexatious demand. He goes on to say, in terms that are not easy to understand, why he has not seen fit to comply with the order.He was notified by a letter of the 7th July 1992, that the Tribunal would consider on the 22nd July whether directions should be given in the case, and in particular, whether his originating application should be struck out for non-compliance with the Tribunal's order of the 5th June. It was pointed out that the parties were entitled to attend, at the above time and place notified and to state, either in person or by a representative, what, if any, directions they desire. It was pointed out that, if a party chooses not to attend, the Chairman may proceed to give such directions as appear to be necessary or desirable in that party's absence.Mr Perera was sent that notice. He wrote a letter dated 16th July 1992 in which he stated that he did not see the relevance of holding a hearing for directions on the 22nd July. He said that his lack of representation and inability to attend in person were important considerations, but not necessarily central to his view. He added,
"I should therefore be grateful if the Tribunal would consider waiving or postponing the directions if such a course is admissible under the Rules of Procedure. I do recognise that this is strictly a matter for the Tribunal's authority which I respect, and not one in which I have particular entitlement."
The Tribunal, in our view, was right to order the particulars as necessary for the Respondent to know what case was being made out against him and consider, in particular, whether the claim made was time barred. There is no doubt under the Industrial Tribunal's Rules of Procedure Regulations 1993, the Tribunal had power to order the particulars under Rule 4(1)(a). It also has power under Rule 4(7) that, if a requirement made for particulars was not complied with, the Tribunal could strike out the whole or part of the Originating Application and dismiss it for non-compliance.The Interlocutory Hearing took place on the 22nd July and, although not bound to give reasons for the Decision he made, the Chairman set out 8 paragraphs of Reasons as to why, in the circumstances, he exercised his discretion to dismiss the Originating Application. In his Reasons he referred to the order that was made, including specifically the reference to the typing error of the 25th May, when what was intended the 25th June. He referred to the letters which had been received from Mr Perera in which he refused to give the particulars. He referred to the Notice which I have read, giving details of the Hearing for Directions and the orders which were liable to be made at the hearing.The letter from Mr Perera for 16th July was also noted. The Chairman, it was noted, had refused to vacate the hearing, or waive or postpone it. The Chairman said this, in paragraph 7 and 8:
"7.On 21 July 1992 the applicant was informed by telephone of the refusal and drew attention to his letter to the Tribunal dated 27 May 1992 and accompanying medical certificate. This certified that the applicant was suffering from acute anxiety and depression and was unable to attend work for three months.
8.There is no evidence that the applicant is too unwell to attend a hearing. In any event he is clearly well enough to write long letters to the Tribunal and he has categorically refused on more than one occasion to furnish proper particulars of his application. In these circumstances the only proper course in my view is to dismiss it."Those reasons were notified to the parties on the 29th July. On the appeal against that order, which was made in the exercise of a discretion, it is necessary for a party to show that there is an error of law in the Decision. It is not easy to show an error of law in the exercise of the discretion because of the width of the power. There may be an error of law, if it can be demonstrated that the Chairman has acted under an inappropriate rule or has, while acting under an appropriate rule, taken into account irrelevant factors, or failed to take into account relevant factors, or has exercised the discretion in a manner which no reasonable Chairman would have done.We have been taken by Mr Clark through the relevant documents and the relevant Rules of Procedure. We have taken into account the representations which have been made at various times by Mr Perera, both in his documentary submissions to this Tribunal and in his responses to the Industrial Tribunal.We have reached the conclusion that there is no error of law in the Decision appealed against. The Chairman exercised a discretion which he had under Rule 4. Full Notice of the hearing at which he exercised that discretion had been given to Mr Perera. He was made fully aware of the likely consequences of his failure to comply with an order which, in our view, was necessary to be made and was properly made.In the absence of any error of law, this Appeal must be dismissed and we therefore do that.