Metcalfe (t/a Granary Furniture) v Dixon [1994] UKEAT 871_92_2107

EAT
Metcalfe (t/a Granary Furniture) v Dixon
[1994] UKEAT 871_92_2107 · 1994-07-21
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Hull on the 13th August and 13 October 1992.The Tribunal, for Full Reasons notified to the parties on the 28th October 1992, unanimously decided that Mr David Dixon had been unfairly dismissed by his employer, Mr John Metcalfe t/a Granary Furniture. The Tribunal went on to hold that:
"Mr Dixon contributed to his own dismissal to the extent of two thirds;
the respondent [Mr Metcalfe] is ordered to pay compensation to the applicant [Mr Dixon] in the total sum of £1,756] subject to the Recoupment Regulations."It is unnecessary, in the light of what has recently happened, to go into the circumstances in which this dispute arose. After the decision was notified Mr Metcalfe, who was dissatisfied with the decision, appealed by Notice of Appeal dated 27th November 1992. The two main grounds on which he challenged the decision were first that the Tribunal were wrong in law in finding the dismissal to be unfair and, secondly, that the Tribunal had erred in law on the question of contributory fault in finding that Mr Dixon was only two thirds to blame for his dismissal. His argument was that Mr Dixon must have been 100% to blame.Mr Dixon responded to that appeal and also put in a cross appeal. His cross appeal was that the Tribunal had erred in law in its decision to cut off the compensatory award at the 23rd March. It was stated in the cross appeal:
"that the 2/3rds contributory element should apply to the period after the loss of Mr Dixon's driving licence, up to the decision of the tribunal hearing on 13th October in addition to the compensation already awarded."
That may not make immediate sense without an examination of the facts which gave rise to the dispute. It is however, unnecessary to do that because what has now happened has made this appeal and cross appeal ineffective.A letter was sent to the Registrar of this Tribunal on the 19th July 1994 from a firm of Solicitors in Hull, Lockings, who had been acting for Mr Metcalfe. They stated that they were without instructions and would not be attending the appeal. All they were able to say was:
"that the Appeal could, perhaps, go forward based on the grounds as set out in the Notice of Appeal but without further expansion on those grounds."
They apologised for the position that had arisen, but said they had no alternative, bearing in mind their lack of instructions. They sent a letter of courtesy to Mr Dixon informing him of the position.On the appeal, therefore, the position is that no representative has attended on behalf of Mr Metcalfe. Following a telephone call from this Tribunal the Solicitors confirmed that Mr Metcalfe was aware of the date of today's hearing. Mr Metcalfe has not attended to pursue the appeal. The appeal must therefore be dismissed for want of prosecution. We would add that, on the material at present before us, it was highly unlikely that this appeal could have succeeded, even if Mr Metcalfe had been represented or had attended. It appeared to us on a reading of the papers that neither of the points raised in his Notice of Appeal was a point of law.As to the cross appeal, the position today is that Mr Dixon has been represented by Mr Burns. He has informed us that, on his client's instructions, as the appeal is no longer pursued he does not wish to pursue the cross appeal. We would add that we had considered the papers and formed a provisional view that the cross appeal was also on a matter of fact and degree which it was difficult for us to disturb. We could not identify any error of law on the material we had read. The result of this late turn of events is that the appeal is dismissed and the cross appeal is dismissed.