Somjee v Mersey Regional Health Authority [1995] UKEAT 60_94_1905

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 60_94_1905

Case No Appeal No. EAT/60/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Somjee

Mersey Regional Health Authority

Date 19 May 1995

MR JUSTICE MUMMERY (PRESIDENT): This is an application for review of a decision of the Employment Appeal Tribunal given on 22 September 1994. The E.A.T. heard an appeal by the Appellant, Miss Somjee. They heard Mr Benson of Counsel make submissions on behalf of the Respondents, Mersey Regional Health Authority, and ordered that the appeal be dismissed. In accordance with the normal practice of the Tribunal, the presiding judge, Mr Justice French, delivered a judgment giving the reasons of the Tribunal for dismissing the appeal.

On 18 December 1994 the Appellant wrote to the E.A.T. stating that she had just returned home from working away. She found the transcript of the judgment in the post. She expressed surprise at the silence of the Appeal Tribunal on two important grounds of the appeal, on which it was bound in law to adjudicate. She asked that Mr Justice French's attention should be drawn to three authorities, which were used to argue the grounds of the appeal. She submitted that the Tribunal was bound in law to give written reasons for rejecting those authorities, if it found that they did not apply.

In the light of those points, the letter went on to say `It would be much appreciated in the interests of justice if the learned judge would please take the time to read this authority and reconcile it with his own point on discretionary time limit'. That referred to the decision of Medallion Holidays v Birch . The letter concluded: `It would be much appreciated if the reasons requested above are dealt with urgently'. As a result of that letter a direction was given that the letter would be treated as an application for review of the judgment of 22 September. It was also directed that the application for review would be heard by a different Tribunal. It was not possible to reconvene the original Tribunal.

This is the hearing of the application. The representation of the Health Authority is the same as before, Mr Benson. Miss Somjee has argued her own case. The power of the E.A.T. to review one of its decisions is contained in Rule 33 of The Employment Appeal Tribunal Rules 1993 . Rule 33(1) provides:

"The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that: (c) the interests of justice require such review."

The question in this case is, do the interests of justice require a review of the decision of 22 September? We have been referred to one decision on the power of review. The decision is on the earlier rules of 1980. There is no significant difference between the wording of the earlier Rule 26 of The Employment Appeal Tribunal Rules 1980 and the current rule. The case is Blockleys Plc v Miller 1992 [ICR749] . The decision is accurately summarised in the head note:

"...the power of review [by the Appeal Tribunal] was to be exercised within a narrow margin, namely,... where there had been a fundamental procedural error, in a case of fraud appearing very soon after the decision and in simple cases of minor errors or omissions... in the decision, which need to be corrected."

The purpose of the rule was not to enable cases to be re-argued or re-heard. Nor is it to enable the Tribunal which decided the case to review its decision on the grounds on which there could be an appeal. The passages in the judgment which make good that head note are on page 754C to 756F. In order to decide whether to grant a review, it is necessary to look at the point which is the subject of the appeal. The appeal was against the decision of the Chairman of the Industrial Tribunal held at Liverpool in December 1993. His decision arose out of an earlier hearing on 24 February 1993.

On 24 February 1993, the Industrial Tribunal heard cross applications to strike out pleadings. The Health Authority made an unsuccessful application to strike out two originating applications brought by Miss Somjee against the Health Authority. There is no appeal against that. Miss Somjee made an unsuccessful application to strike out the Health Authority's defence in one of the cases, 15889/89. Although that was not granted, the Tribunal, in the Full Reasons sent to the parties on 9 June 1993, directed that a period of 42 days be allowed from the date of promulgation of the decision for the notice of appearance of the Health Authority to be amended in accordance with the Tribunal's direction. The Health Authority failed to comply with the time limit imposed. That gave rise to the later decision notified to the parties in December 1993. On that occasion, the Chairman of the Tribunal heard an application by Miss Somjee to strike out the Notice of Appearance on the ground that there had been a delay in the case proceeding towards a hearing. Reference was made to the causes of the delay until the hearing in February. Comments were made by the Chairman about the attribution of blame. He referred to the Tribunal decision and the direction given in relation to the amendment of the Notice of Appearance. He then came to the crucial part and said: `The amendment directed by the Tribunal was not made within the 42 day limit.' Mrs Lawrence, on behalf of the Health Authority, apologised and referred to the difficulties of obtaining instructions from several busy people. She did not pretend that that failure to meet the limit was excusable. The limit provided was generous and the direction should have been complied with in time. Paragraph 8 states:

"The amendment to the Notice of Appearance was in fact received on 31 August 1993. It is the kind of document asked for by the Tribunal but it was 37 days late. The Chairman had to decide whether to strike out the Notice of Appearance because of the late delivery of the respondents' document. He reminded himself that he had a discretion whether to do so. There was no very good reason advanced for the delay. Time limits are imposed to be observed. Delays cause distress to parties seeking relief. But the delay attributable to the respondents here, 37 days, while substantial, is small compared with the overall delay occasioned by the combined fault of the parties and the Tribunal, and by the Tribunal's unavoidable difficulties stemming from the pressure of its workload. To strike out the Notice of Appearance for this delay would be draconian. This is a case of importance to both parties. It is desirable that it should be heard on its merits: that can only be if both parties are heard. It is now at last ready for listing. It is difficult to discern any substantial prejudice to the applicant occasioned by the 37-day delay. Her concern to have her case heard may be met by an expeditious listing. In the circumstances, the application to strike out was refused."

We would observe at this stage that the comments about an early hearing and an expeditious listing were optimistic. They were made in December 1993. The case has still not been heard. That was the decision brought on appeal to this Tribunal on 22 September 1994. Our understanding is that, during the course of the submissions made by Miss Somjee, she referred to three authorities on which she based arguments. Those were Dedman v British Building & Engineering Appliances Ltd.

[1974] ICR53

; the transcript of a case of the Employment Appeal Tribunal on 28 April 1988, 147 Snooker Club v Mrs S M Shirley ; and Medallion Holidays Ltd. v Birch

[1985] ICR578

. Her complaint on the application for review is that Mr Justice French, in the judgment dismissing her appeal, was silent on all of these authorities. That is a correct submission. The decision of Mr Justice French and the two lay members does not deal with the authorities.

What we have to decide today, is whether to grant an application for a review on that ground. We take the case in two stages. We first look at the Decision given by Mr Justice French. Secondly, we consider the authorities and ask ourselves whether a proper consideration of the authorities would have resulted in a different decision. The judgment outlines matters already referred to in relation to the decision of the Chairman and the circumstances in which it was made. It quotes passages from the Decision. The crucial part of the judgment states:

"We would observe that if the Applicant is right in her contentions in the Originating Application she has indeed suffered prejudice of a distressing and serious nature. Her family circumstances arouse great sympathy. But in common with the Chairman, we cannot discern any substantial prejudice arising from the additional delay , nor was any such advanced to us. We bear in mind that the 42 day limit was not one imposed by statute or statutory instrument, but was in the discretion of the Industrial Tribunal. We have to consider whether the decision not to strike out was perverse; whether the Chairman took into account matters which he should not have taken into account or omitted to take into account matters which he should have taken into account or reached a conclusion which no reasonable Tribunal could properly have reached, or made some error of law. We are quite unpersuaded that the decision of the Chairman can properly be challenged in these or any other respects.

The case must be heard. We direct that a date be fixed for the hearing, even in that means standing out some case which has not got this lamentable history of delay."

Those were the reasons for dismissing the appeal. In deciding whether or not to grant a review, we look at two matters. First, the rules which govern the exercise of the discretion under appeal; then at the cases cited by Miss Somjee and commented on by her and then Mr Benson. The rules we have been referred to are the following: Rule 3(1) The Industrial Tribunals (Rules of Procedure) Regulations 1985 . (Those have been superseded since December 1993 by new rules.) These were the rules in force at the relevant time. Rule 3(1) provides that:

"A respondent shall within 14 days of receiving the copy originating application enter an appearance to the proceedings by presenting to the Secretary of the Tribunals a written notice of appearance setting out his full name and address and stating whether or not he intends to resist the application and, if so, [this is the crucial part] setting out sufficient particulars to show on what grounds..."

The rule goes on to provide that a Respondent who does not enter an appearance is not entitled to take any part in the proceedings, except for certain limited purposes. The point made by Miss Somjee is that the original Notice of Appearance put in by the Authority did not show particulars of the grounds relied on to resist her claim. That was why there was a hearing of an application to strike it out and a subsequent order to provide particulars that were not complied with within the time set.

Rule 4(1)b(i) confers on a Tribunal a discretion to require a party to furnish further particulars of the grounds on which he or it relies and of any facts and contentions relevant thereto. That was the discretion exercised by the Tribunal when it ordered the Authority to provide an amended Notice of Application within 42 days. Rule 4(4) states:

"If the requirement under paragraph (1)(i) or (1)(ii) of this Rule is not complied with, a tribunal, before or at the hearing, may dismiss the whole or part of the originating application, or, as the case may be, strike out the whole or part of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether..."

That is what Miss Somjee asked the Chairman to do in December 1993; to strike out the Notice of Appearance and to debar the Health Authority from defending, because the requirement for the provision of grounds in the amendment within 42 days of the hearing in February was not complied with.

The important point to note about that provision is that, although a Tribunal may make a direction that a Respondent shall be debarred from defending, whether or not it makes such a direction is discretionary. That is the force of the word " may ". It is for the Tribunal to decide whether or not, in all the circumstances, it is an appropriate case to strike out for non- compliance or to allow the matter to go forward despite non-compliance. Mention was also made of Rule 12(2)(f) which provides that there may be a striking out of an originating application for want of prosecution. That does not expressly mention striking out a Notice of Appearance, but a Tribunal clearly has that power. Under Rule 12(1) it may regulate its own procedure and in appropriate cases may strike out documents which do not comply with the rules or documents not submitted within the time set by the rules or set by the Tribunal, when it makes an order. As is already clear from the parts quoted from the Decision of the E.A.T. last September, the Tribunal took the view that, on an appeal, a discretion could not be interfered with, except on certain limited grounds. The reason is this: this Appeal Tribunal only has jurisdiction to hear appeals on points of law. This is not an Industrial Tribunal re-hearing a case already heard by another Industrial Tribunal. Appeals are governed by Section 136 Employment Protection (Consolidation) Act 1978 . Although that is in the Employment Protection Act , it governs appeals against decisions on, among other things, alleged breaches of the Race Relations Act . The complaints in this case are of racial discrimination. Section 136 provides:

"An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, the following Acts...

Listed in that are: the Sex Discrimination Act , the Race Relations Act , the Equal Pay Act , etc.

The important point to note is that appeals are limited to questions of law. A dispute about facts is not a question of law. A dispute about the exercise of a discretion only raises a point of law if it can be shown by the Appellant that the Tribunal has exercised the discretion other than in a judicial manner. A discretion is only exercised judicially if it is exercised in accordance with correct principles of law and is exercised by looking at all the circumstances that are relevant and not by reference to circumstances that are irrelevant. It follows that a discretion is more difficult to appeal against than a decision of an Industrial Tribunal on, for example, the interpretation of a regulation or the interpretation of a statutory provision. There is no discretion about that. The Tribunal simply makes a ruling on its interpretation. It is either right or wrong. Rightness and wrongness is a matter of relativity in a discretion. We make it clear, if it is not clear already in Mr Justice French's judgment, that a decision on a discretion can not be interfered with on an appeal, simply because the Appeal Tribunal would have exercised the discretion differently, if it had been the Chairman of the Industrial Tribunal or had been the Industrial Tribunal. Similarly, it cannot interfere with the discretion, simply because it thinks that another Industrial Tribunal would have taken a stricter view or a more lenient view in the exercise of a discretion. There is a range of responses to the exercise of a discretion. The exercise can only be faulted on the grounds mentioned.

The main passage quoted from Mr Justice French's judgment, is a correct direction about the determination of an appeal against a discretion. That leaves only one point; the three authorities. We agree with Miss Somjee's submission that if she cited, as she did, three authorities to the Tribunal, it was not unreasonable to expect that, in giving the reasons for dismissing her case, the Tribunal would mention the authorities or the arguments based on them. A Tribunal is not bound to, but we would emphasise that it is usually good practice in dealing with appeals, to attempt to deal with the main arguments advanced and to mention particular regulations and decisions cited. Every party who loses a case is entitled to be told the reasons for losing. We think that this is important when a person conducting their own case has carried out research on legal aspects of the case.

With those remarks, we turn to the three cases. Mr Benson for the Health Authority did not dispute that these cases had been cited to the Appeal Tribunal last September. We deal with each of them. Dedman v British Building & Engineering Appliances Ltd.

[1974] ICR53

. This was a case concerning the presentation of a complaint of unfair dismissal, after the expiration of the time limit. In such cases a Tribunal has no jurisdiction to hear a case, unless it is satisfied that, in the circumstances, it was not practicable for the complaint to be presented within the time limit. The decision of the Court of Appeal in that case is not only on a different rule than the one in this case, but a different kind of rule. It was not dealing with the power of a court to strike out a party's case for not complying with an order. It was dealing with the question whether time should be extended for bringing a case outside the time limit set by the legislation. The question in that case is what interpretation should be given to "practicability".

The point made by Miss Somjee on this case, is that it is made clear in the passage on pages 61(D-H) and 62(C) that, if there has been a failure to comply with time limits and it appears that the reason for the failure to comply with time limits is a mistake or slip-up on the part of a legal adviser, (the same would apply to any other professional adviser) that is not accepted by a Court or Tribunal as an excuse for not complying with time limits. Applying that reasoning to this case, Miss Somjee argues by reference to the passage in the Decision of the Chairman, that that was the kind of excuse advanced by the Authority to the Chairman. As stated in paragraph 7 of the Chairman's Decision, Mrs Lawrence apologised for the failure to comply with the 42-day limit for the amendment, referred to difficulties of obtaining instructions, but did not pretend that the failure to meet the limit was excusable. Therefore, Miss Somjee argued, the only explanation put forward was the adviser's difficulties in obtaining instructions, there was no basis on which the discretion could be exercised by the Chairman to refuse her application to strike out. If a person wished to resist the striking out, they had to put forward a valid reason for not complying. The slip-up of a solicitor would not be a valid reason for not complying a fortiori, not putting forward any valid excuse at all, could not justify refusing her application to strike out.

The second case referred to is in a transcript, 147 Snooker Club v Mrs S M Shirley , a decision of the E.A.T. given on 28 April 1988. That was a case where the respondent to an application for unfair dismissal failed to put in a Notice of Appearance at all. It was held that the fact that that was a slip-up on the part of the employers' solicitors was really no excuse in all the circumstances. That is cited by Miss Somjee to support her proposition that you must have an excuse for failure to comply, otherwise you may be shut-out from the proceedings. It is not an acceptable excuse that a legal adviser has made a mistake or oversight.

The third decision is Medallion Holidays Ltd. v Birch

[1985] ICR578

, Miss Somjee's strongest authority. In that case the Chairman of the Industrial Tribunal did strike out the employers' Notice of Appearance and did so for failure to comply with an order for particulars. The employers' appeal to the E.A.T. was dismissed. So, Miss Somjee argues, if there was a strike out by the Industrial Tribunal Chairman in that case, for failure to comply with an order of a similar kind to that made here, and that decision was not disturbed on an appeal, it must have been a correct decision. If it was a correct decision, it should have been followed by the Chairman of the Industrial Tribunal in this case. Instead of following it and striking out the authority's Notice of Appearance, he ignored it. As we understand it, these authorities were put before the Chairman, as they were put before the E.A.T. Miss Somjee says this shows that there was an error of law on the part of the Industrial Tribunal Chairman. He had done the opposite to what had been done by the Industrial Tribunal Chairman in the Medallion case. Therefore he must have been legally wrong.

Those were the three cases. Miss Somjee presented her case very clearly. We understand the two main points she extracts from these three cases. The first point that, in the exercise of a discretion a relevant factor is, what is the reason for non-compliance with an order, when you are considering whether to strike out for non-compliance. If no reason is given, there is a strong, I think she would say, almost overwhelming compulsion on the Tribunal to strike out. If a reason is given, you have to look at what the reason is. If the reason is a slip-up of a professional adviser, that is not a good reason. Then she points to Medallion , a very similar case of a Tribunal Chairman striking out, approved by this Tribunal. This Tribunal is bound by decisions. The Chairman of the Industrial Tribunal is bound by decisions of this Tribunal. Medallion should have been followed.

We understand all those arguments. We understand why Miss Somjee is herself convinced of their correctness. We point out however, that it is not in fact a correct legal analysis of the situation in this case. The correct legal analysis of the situation in this case is:

) The Chairman had a discretion whether to strike out for non-compliance. He declined to exercise the discretion to strike out.

) We can only interfere with that decision if there is an error of legal principle in his decision, or some perversity in it, or some influence of irrelevant factors or ignoring of relevant factors.

That is made clear by the passages referred to in the Medallion case itself. The particular passages cited by Mr Benson emphasise the limited nature of this Tribunal's powers on an appeal. He referred in particular to passages on page 581(D); there are later passages in the Decision, which emphasise the limited nature of an appeal against a discretion. We refer in particular to paragraph 589(D-G) particularly the opening words:

"...that the appeal tribunal should in principle be slow to infer a misguided exercise of discretion merely because an industrial tribunal happens in any particular case to have exercised the striking-out discretion with more severity..... than might have been expected from a master or district registrar faced with comparable conduct in ordinary civil litigation."

The same comments apply, when one is concerned as Miss Somjee is, with the alleged leniency of this Chairman in failing to strike out. When we look at this decision which the Chairman has justified by Full Reasons, we are not able to see in it any error of law which would entitle us to disturb it. He has correctly directed himself about his discretion. He has looked at all the circumstances in the case. His conclusion is that there should not be a strike out, but the case should proceed to an expeditious hearing on the merits. He particularly addressed himself to the question of whether the Applicant, Miss Somjee, had suffered any prejudice by reason of the additional delay, that is, delay caused by the failure to comply with the direction in addition to the already substantial delay in the progress of the proceedings. He found there was no prejudice. That is clearly an important consideration. He did not ignore the failure of the Health Authority to have or provide a reason for non-compliance. He noted what Mrs Lawrence had said and he took that into account.

The fallacy in Miss Somjee's argument is that she says, as a matter of law, by reference to these three decisions and the rules, the Chairman could only properly have made an order striking out. That is not legally correct. He had a discretion. He exercised it one way. Another Chairman might have been more strict and exercised it another way; that does not make it a faulty exercise of discretion. For all those reasons, we see no grounds for granting a review. We mention that we had a further argument from Mr Benson. That was a jurisdictional argument. He said we have not got jurisdiction to grant a review. He referred us to the wording of Rule 33 Blockleys Plc v Miller . In our view, we have jurisdiction to grant a review on grounds that a decision has been given, without dealing with all the arguments that have been put forward. In this case we do not grant a review, because we are satisfied that, if all the decisions the authorities had been referred to by an E.A.T. they would still have been right to come to the decision that they did on 22 September.

Those are our reasons for refusing to grant a review in the exercise of our discretion. The application for the review is dismissed. The original order dismissing the appeal stands.

We have just given a judgment refusing an application for a review of the decision of the E.A.T. of 22 September. There is one further matter which we should mention, which we have resolved during the course of the day. We give this short statement, so that there is a record. When this matter was set down for the application for the review today, it came to light that there are in fact pending in the Tribunal appeals which were the subject of an order made on a Preliminary Hearing on 17 July 1991. There were appeals pending in two cases - EAT 87/90 and EAT 88/90 . They are between Miss Somjee v Mersey Regional Health Authority .

At a Preliminary Hearing on 17 July 1991, the E.A.T., having heard Counsel on behalf of Dr Somjee, directed that the appeals be allowed to proceed to a Full Hearing. Leave was granted to amend the Notice of Appeal. An order was made for the provision of Notes of Evidence of the substantive hearing and the review hearing. A direction was given for the agreement and pagination of a Bundle of Exhibits. An order was made for an agreed chronology of events to be filed. Skeleton Arguments were ordered to be exchanged, not less than 42 days prior to the hearing. The Tribunal ordered that 5 days be set aside for the hearing of the appeals. The order concluded with the liberty to apply.

Although that order was made nearly 4 years ago, the appeals have still not been heard. Nor have the directions contained in them all been complied with. The position is that the amendment to the Notice of Appeal was not provided to the E.A.T. until 1 February 1995. That delayed the amendment of the answer. That was received in the E.A.T. on 31 March 1995. The Notes of Evidence were provided by the Chairman in October 1991. No Bundle of Exhibits has been agreed. No chronology of events has been filed and the time for exchanging the Skeleton Arguments has not yet arrived.

As we understood the position from the parties, the reason that no progress had been made with the hearing of the appeals, was that there had been correspondence with the E.A.T. in October 1991. We have turned up that correspondence. A letter was written by Hill Dickinson Davis Campbell, Solicitors for the Health Authority on 9 October, complaining that they had not received the amended Notice of Appeal, complaining of the delay that resulted and asking that the Appellant be ordered to serve an amended Notice of Appeal within 14 days, failing which the leave granted should be withdrawn. It now appears that some enquiries must have been made by the E.A.T. from the solicitors acting for Miss Somjee and this letter was written in reply to Hill Dickinson's letter on 17 October. "We understand from the Appellant's solicitors there are some preliminary matters still outstanding at the Industrial Tribunal, which will need to be resolved before the appeals at this Tribunal can proceed. In the circumstances it is directed that further proceedings on the appeals be stayed, pending the determination of the outstanding matters at the Industrial Tribunal."

We have decided that in these circumstances everything possible should be done to ensure that all appeals outstanding in this matter should be brought to a conclusion as quickly as possible. We therefore have made these orders:

That the stay on further proceedings on the current appeals be lifted;

That the pending appeals, which were the subject of the directions on the 17 July 1991, be listed for hearing on 6 November. During the course of the day it has been ascertained that that is the first date on which the appeal can be conveniently heard, having regard to the commitments of the Tribunal, the parties and their advisers.

In preparation for that appeal, the outstanding directions should be complied with:

i) The direction that 5 days be set aside for the hearing of the appeals is rescinded. We make that order under Rule 33 Employment Appeal Tribunal Rules .

ii) We direct that it be set down to be heard for one day. From what we have read of the papers, it should be adequate to deal with any point of law arising on the appeal to be finished in one day.

iii) We also give this direction - that if the hearing of the case on which we have just heard an appeal is dealt with on the merits between now and November 1995, any appeal by the person who has lost that case is to be brought on before the same Tribunal on 7 November. That will enable appeals in all disputes between the parties to be dealt with by the same Tribunal. We have also directed that, if possible, the Tribunal hearing those appeals should be constituted as it is today. That will help to save time in hearing the arguments about the background to the disputes.