David Weston (t/a Mildenhire Car Rents) v Smeltzer [1995] UKEAT 1015_94_0310

EAT
David Weston (t/a Mildenhire Car Rents) v Smeltzer
[1995] UKEAT 1015_94_0310 · 1995-10-03
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr David Weston T/A Mildenhire Car Rentals. The appeal is in proceedings in which he is a Respondent and a former employee, Mr Stephen Smeltzer, is the Applicant.The appeal is against an order, made by the Industrial Tribunal and sent to the parties on 9 September 1994, striking out Mr Weston's Notice of Appearance (the IT3) and debarring him from defending the proceedings.The Notice of Appeal is contained in letters of 18 October 1994. The purpose of the preliminary hearing is to decide whether there is an arguable legal point in the appeal. If there is not, there is no point in the matter proceeding to a full hearing.At the hearing this morning, Mr West appeared for the Appellant. He made the best he could of the points available in support of this appeal. In order to deal with his submission, it is necessary to trace the history of these proceedings.The Originating Application was received at the Central Office of Industrial Tribunals in Bury-St-Edmunds on 27 May 1994. Mr Smeltzer complained that he had been unfairly dismissed from his job as a Car Rental Office Manager on 4 March 1994. He named the Respondent employer as David Weston T/A Mildenhire Car Rentals. He gave the address as The Bird In Hand Motel, Beck Row, Bury St Edmunds. He gave a telephone number 0638-718288.In box 10 of the IT1 he gave the facts which he said constituted unfair dismissal. Mr Weston submitted an undated Notice of Appearance on the IT3 form; it was sent in June or July. He disputed the claim on the basis that Mr Smeltzer had not been dismissed. He said he walked out and dismissed himself.The crucial feature of the IT3 is the address given by Mr Weston. He gave the address as 2 York Close, Beck Row, Bury St Edmunds. He gave the same telephone number as Mr Smeltzer had given in the IT1. That address was acted upon by those representing Mr Smeltzer and by the Industrial Tribunal.On 15 July those representing Mr Smeltzer, MD Personnel Services, wrote a letter to Mr Weston at the York Close address, asking him to supply a copy of Mr Smeltzer's terms and conditions of employment, or any other documents that controlled his relationship with him. He was asked that if no such documents existed, would he confirm that fact in writing.On 1 August, MD Personnel Services wrote to the Regional Office of Industrial Tribunals enclosing the 15 July letter, saying "no correspondence or contact of any kind has been forthcoming". They requested the Tribunal to make a discovery order. The Tribunal acceded to that request and on 5 August made an order that:
".... on or before 19 August 1994 the Respondent [Mr Weston] shall supply in writing to the Applicant's representative a list of documents ... relating to the matters in question in these proceedings."
The order stated:
"Failure to comply with this Order may result in ... the whole or part of the Notice of Appearance being struck out before or at the hearing."
That order was sent to Mr Weston at the York Close address.On 23 August, Mr Smeltzer's representatives said that, despite the discovery order, no correspondence or contact of any kind had been forthcoming, and requested "that consideration is given to striking out the Notice of Appearance".On 31 August, the Industrial Tribunal wrote to the York Close address saying:
"I understand that you have failed to comply by the due date, 19th August, with the Order of the Tribunal dated 5th August.
Unless you show cause to the contrary or comply with the Order by 7th September, your Notice of Appearance will that day be struck out, and you will be barred from defending the proceedings."It was not complied with and the IT3 was struck out. Mr Weston then wrote to the Industrial Tribunal on 14 September, saying that he had not received any correspondence, other than that originally addressed to the address of The Bird in Hand Motel, Beck Row, (the business address). He wrote:
".... I had cause today to speak to Angela Pickett, she has informed me and confirmed that I gave the address 2 York Close, Beck Row. Despite having conducted business from the Bird in Hand Motel for ten years. It was my intention to give a home address for the purpose of confidentiality.
My current home address however is Riverside Lodge, New Riverbank, Littleport, Ely, Cambs, CB7 4TA and my previous address was Beadles Barn, Flempton, Bury St Edmunds, Suffolk."And he gave details of those and said:
"I had to vacate that house and the intention was to move to the address 2 York Close. Unfortunately that fell through and I ended up moving to my current address, Riverside Lodge [in Ely]. The American serviceman who rented 2 York Close instead of me has never passed any letters to me and indeed would not know where I live or work."
It appears from that letter, which deals with other matters, that Mr Weston's excuse for not complying with the order was that the documents never came to his notice.In our view, the Tribunal were legally correct in striking out the IT3 for failure to comply with the order for discovery. The fact that the order for discovery, or the request preceding it, or the order for striking out which followed it, never came to Mr Weston's personal notice, was not the consequence of any error of law by the Tribunal; it was the consequence of Mr Weston giving to the Tribunal and to the Applicant an address which he says he was not actually living at, or conducting business from.The position under the rules is clear. Under Rule 20, dealing with notices, it is provided in sub-rule 3 as follows:
"(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at:- (c) in the case of a notice or document directed to a party:- (i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent .... "
The Notice of Appearance gave the address to which the Applicant's representatives directed their requests for discovery, to which the Industrial Tribunal directed the order for discovery, and to which the Industrial Tribunal sent the striking out order.What error did the Tribunal commit that entitles Mr Weston to appeal against the striking out order? The only argument that Mr West was able to put forward on Mr Weston's behalf was that a draconian order made without his client ever having received personal notice of the order for discovery or the warning that his IT3 would be struck out if he did not comply with the order.Mr West referred to Rule 4(7) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, which provides that:
"4(7) If a requirement under paragraph (1) or (3) is not complied with, [and this was such a requirement, the order for discovery] a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."
The argument that Mr West put forward was that his client had not, in fact, received any notice giving him an opportunity to show cause why a striking out order should not be made; he was not, therefore, able to show cause and, in those circumstances, it was wrong to strike it out. He had not been given that prior opportunity required by the rules to show cause.In our view, that is no error of law by the Tribunal. The position is that Mr Weston was given an opportunity to show cause; that was in a letter which is dated 31 August; that letter was sent to the address which Mr Weston gave. The fact that he did not see it is his own responsibility and he must take the consequences of his actions.In our view, the Industrial Tribunal is correct when it says this in the letter that it wrote to Mr Weston on 22 September, in response to the letter of 14 September.
" All correspondence and documentation has been sent to the address which you inserted as yours in your Notice of Appearance and you have only yourself to blame that you are now barred from continuing participation in the case."
In our view, there has been no injustice in this case. If Mr Weston was not living at 2 York Close, he should have pointed that out. He should have said that correspondence should be sent to him, until further notice, at the address that he was living at in Ely. Alternatively, he should not have given a different address than the business address, given by the Applicant in his Notice of Application, IT1. In our view, the Tribunal acted in accordance with the rules; there has been no error of law and there has been no injustice as a result of striking out the Notice of Appearance.It cannot be emphasised too strongly that when parties give an address to a Tribunal, the documents will be sent by the Tribunal to that address, unless and until it receives any notification to the contrary. It is the responsibility of parties to give correct addresses of places where the mail will be received by them. It is their responsibility to see that any mail sent to an address they have given, where they are not living, is collected or forwarded to them.In these circumstances, there is no arguable point on this appeal. It is accordingly dismissed.