R S D Technology Ltd v Dawson [1995] UKEAT 608_94_0811

EAT
R S D Technology Ltd v Dawson
[1995] UKEAT 608_94_0811 · 1995-11-08
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by R.S.D. Technology Ltd against the decision of the Industrial Tribunal held at Bedford on 16 March 1994.In the extended reasons sent to the parties on 19 May 1994, the Tribunal explained why they unanimously decided that the Applicant in the proceedings, Mr Peter Dawson, was entitled to a redundancy payment of £615.At that hearing Mr Dawson represented himself, but the respondent Company, although represented by Solicitors, did not attend the hearing.The Company was dissatisfied with the decision and appealed by Notice of Appeal served on 17 June 1994. The Notice of Appeal was served on Mr Dawson. A preliminary hearing of that appeal took place in this Tribunal on 11 October 1994. Counsel for R.S.D. Technology appeared and the Tribunal made an order that the appeal be allowed to proceed to a full hearing. An order was made that the Chairman produce his Notes of Evidence and that the bundle of documents be agreed and paginated.On 25 October, a letter was sent by the Registrar of this Tribunal to Mr Dawson at the address in Bedfordshire, as given by him in his Originating Application, saying this:
"The Tribunal, having heard the Appellant on 11 October 1994 at a preliminary hearing, has directed that the appeal be admitted and go forward for a full hearing.
In accordance with Rule 4 of the Employment Appeal Tribunal Rules 1980, I enclose by way of service a sealed copy of the above Notice of Appeal.You are a Respondent to the appeal and if you wish to oppose it you should complete a copy of the enclosed Form 4 and return it so as to reach this Office by not later than 8 November 1994. Your Answer will then be served on the Appellant. If you are not opposing the appeal there is no need to complete Form 4, but you should inform this Tribunal immediately of your decision."It also says in the last paragraph of the letter that:
"Any change of address during the course of these proceedings should be notified to this Office at once."
There was no response from Mr Dawson; no Respondent's Notice by 8 November or at all. A further letter was sent to him on 6 February referring to the Notice of Appeal and the letter of 25 October, a copy of which was enclosed. The letter of 6 February said:
"... The reply date has now passed and no answer has been received.

Please let us know as soon as possible whether you intend to resist the appeal."

That letter was sent to the same address as the other letter. There has been no response to that letter.These circumstances have led to an application by R.S.D. Technology Ltd for an order under Rule 26 of The Employment Appeal Tribunal Rules 1993 that Mr Dawson, having failed to deliver a Respondent's Answer within the time appointed by the rules, should be debarred from taking any further part in the proceedings. That application is dated 19 May. Miss Vautier made the application this morning.Mr Dawson has not been represented nor has he attended. The basis on which the application is made is that under Rule 6(2) of the 1993 Employment Appeal Tribunal Rules:
"6(2) A respondent who wishes to resist an appeal shall, within the time appointed under paragraph (1) of this rule, deliver to the Appeal Tribunal an answer in writing in, or substantially in, accordance with Form 3 in the Schedule to these Rules, setting out the grounds on which he relies ..."
Under Rule 6(1) the Registrar notifies every Respondent of the date appointed by the Appeal Tribunal, by which any answer under this rule must be delivered. That was the date notified in the letter of 25 October.Miss Vautier referred to the reminder letter and to the fact that there had been no answer received to either letter and no application from Mr Dawson for an extension of time in which to lodge a Respondent's answer. She submitted, and we agree, that under Rule 35 there has been proper service of the Notice of Appeal and of the letters sent to his last known address. Under Rule 35(3):
"35(3) Every document served by post shall be assumed, in the absence of evidence to the contrary, to have been delivered in the normal course of post."
It is in those circumstances that Miss Vautier invoked Rule 26, which deals with the default of parties in proceedings in these terms:
"26. If a respondent to any proceedings fails to deliver an answer ... or, if any party fails to comply with an order or direction of the Appeal Tribunal, the Tribunal may order that he be debarred from taking any further part in the proceedings, or may make such other order as it thinks just."
We have reached the conclusion that an order should be made. It does appear, however, that Mr Dawson has not been served with notice of the application to debar him from the proceedings. For that reason he is to be given one final chance to put in a Respondent's answer.The order we propose to make is this; that Mr Dawson, having failed to deliver a Respondent's answer within the time appointed under the rules, be debarred fromtaking any further part in these proceedings, unless he serves such an answer within 10 days of today.

To: Lynne Giesen

Note from Mr Justice Mummery: 9 November 1995

Mr Dawson is to be sent a copy of the order and a copy of the judgment (which I have just given) so that he has a chance to see the basis on which we have made this order.

Iris Pain

(typist)