Fylde Ice & Cold Storage Co Ltd v Loveless [1995] UKEAT 361_95_1606

EAT

Fylde Ice & Cold Storage Co Ltd v Loveless

[1995] UKEAT 361_95_1606 · 1995-06-16

MR JUSTICE MORISON: Mr Loveless was dismissed by reason of redundancy by his former employers Fylde Ice & Cold Storage Co Ltd with effect from 7 January 1994. He promptly presented a complaint to an Industrial Tribunal alleging that he had been unfairly dismissed. There was a Tribunal hearing on 8 June. The employers offered re-engagement on certain terms. The Industrial Tribunal gave a Reserve decision on 22 June 1994. For a short period Mr Loveless was re-engaged but then left. The Industrial Tribunal directed that there should be a compensation hearing, in the light of the employers' alleged failure to comply with the order of re-engagement. That hearing duly took place on 24 November in the employers' absence and the employee was awarded over £10,000 by way of compensation. About 1 month later, on 18 January 1995, the employers wrote and asked the Industrial Tribunal for an opportunity to set that order aside. That application was well out of time. Under the rules it should have been made by 19 December 1995. It was refused on 14 February 1995. On 3 March 1995 the employers sought to appeal against the decision of the Tribunal, which had been entered in the Register on 5 December 1994, well out of time and against the decision of the Tribunal Chairman to refuse the review.

The Registrar dismissed the proposed appeal against the decision of the 5 December on the grounds that it was out of time and therefore there are two matters before us: first, an appeal against the Registrar's decision and secondly, a Preliminary Hearing to determine whether the prospective appeal against the Chairman's refusal to review the decision, raises any arguable point of law. In an argument which has been of great assistance to us but has not prevailed upon us, Mr Osman on behalf of the employers, has submitted as follows: firstly, that what has happened in this case is not the fault of the employer. They instructed their solicitors that the date fixed for the hearing, namely 24 November, was not convenient to their principal witness and instructed them to ask that that date be vacated. Secondly, they are not at fault in relation to the delay in seeking a review. They instructed the solicitors to apply for a review very shortly after the decision had been entered in the Register. It was entirely due to the solicitors' own fault that the application for the review was not made until 18 January 1995, following a reminder from the employers. Thirdly, it is not satisfactory in principle that a client should have to seek his remedy against his solicitor. That is no proper substitute for justice in the Industrial Tribunal. And fourthly, that the prejudice to the employers were we to refuse to accede to these applications, would greatly outweigh any prejudice to the employee.

This is in our view a bad case in many respects. In the first place, there is no sensible explanation for the delay between 5 December 1994 and 18 January 1995. Secondly, the reason given for the non-attendance of the company at the hearing on 5 December is incredible. The date for the hearing on 24 November was fixed by agreement with the company's solicitors on 12 October. The solicitors say that a letter was sent to the Industrial Tribunal on 25 October asking that the date be postponed. If that had been the case, then surely the solicitors would have contacted the Industrial Tribunal to find out whether the case was adjourned or not. Nothing happened. There was no contact. The letter, if sent, was not received. The Decision was sent to the solicitor presumably on 5 December and still nothing was heard until the company itself wrote, as I understand it, and asked for a review.

If any mistake was made, it was the fault of the company's legal advisers. It is a fundamental principle of justice that there should be finality in litigation and that that means there should be one hearing. The Industrial Tribunal were quite entitled to proceed to hear the case on 24 November in the employer's absence, as they had received no communication asking for an adjournment and none had been granted. The solicitors ought to have contacted the Industrial Tribunal and if needs be, sent a representative to the Tribunal on the day of the hearing to explain the position. There is no satisfactory explanation as we have said for the delay in contacting the Tribunal after the hearing and there is no merit whatever in the appeal against the Registrar's refusal to extend time for the appeal. The time limits for appealing must be strictly adhered to. Incompetence and tardy behaviour are not excuses which can be accepted. No explanation for the delay has effectively been advanced by Counsel.

As to the proposed appeal against the refusal of a review, there is absolutely no merit in any such prospective appeal. This was a proper and sensible decision for the Chairman to take. She has not mis-directed herself and has properly exercised her discretion. We see no basis for thinking that either matter would stand any reasonable prospect of success were we to accede to these applications. The Chairman's decision refusing the review is succinctly set out and I quote:

"1. The application for a Review contained in the respondent's letter dated 18 January 1995 is out of time. The Third Decision was promulgated on the 5 December 1994 and any application for a Review should therefore have been received by 19 December 1994.

2. The only reason for it being out of time was the failure and fault on the part of the respondent's solicitor. Any complaint which the respondent now has must be against his solicitor. The solicitor knew that the Tribunal had made an Order when the decision was promulgated on the 5 December 1994 and since such communications are sent by first class post would have received it the following day or, perhaps, because of it being the Christmas period the day after.

3. In addition I note that the solicitor had failed to notify his client of the hearing on the 12 October 1994 which resulted in the matter of remedy being adjourned to 24 November 1994. That date was fixed at the hearing in his presence and with his agreement on the 12 October 1994.

4. The respondent did not attend the hearing on the 24 November 1994. There is no record of a request being received for that hearing to be postponed. If it had been the respondent's solicitor should have noted that he had received no acknowledgement or reply to that request and received no further date for an adjourned hearing. He made no enquiry of the office.

5. Nor is there any record of an Application for a Review being made by the date directed by the Tribunal in its Second Decision."

It seems to us that the decision of this learned Industrial Tribunal Chairman cannot be faulted. It may not be satisfactory that the employers have to look to their remedy against their solicitors, but, so far as Mr Loveless is concerned, he is entitled to have justice done to him in the way in which it has been done. It seems to us that it would be unjust in the circumstances to allow the matter to proceed any further. Accordingly, we dismiss the appeal against the Registrar's decision and dismiss the appeal against the refusal of a review.