Taylor (t/a Sunnybank School) v Cross & Ors [1995] UKEAT 958_94_3003

EAT
Taylor (t/a Sunnybank School) v Cross & Ors
[1995] UKEAT 958_94_3003 · 1995-03-30
MR JUSTICE MUMMERY (PRESIDENT): This a meeting for directions summoned by a letter of 25th November 1994 to determine whether this Appeal can proceed in the following circumstances.On the 21st July and 22nd July 1994 the Industrial Tribunal sitting in Manchester heard applications by a number of applicants, against three respondents. Luckmate Ltd, Secretary of State for Employment and Mrs Taylor T/A Sunnybank School. The Tribunal, for summary reasons sent to the parties on the 8th August 1994, unaminously decided to make various awards under the Wages Act in favour of the various applicants.Mrs Taylor served a Notice of Appeal on 20th September 1994. She sent with the Notice of Appeal a copy of the Decision containing the Summary Reasons. The Notice of Appeal did not comply with the rules for the institution of appeals to the Appeal Tribunal, contained in Rule 3 of The Employment Appeal Tribunal Rules 1993 . That provides:
"Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:-
And they include; not only a notice of appeal, but also in the case of an appeal from an Industrial Tribunal, a copy of the extended written reasons for the decision of the tribunal. No extended written reasons have been provided.On 25th November 1994 a letter was sent by the Employment Appeal Tribunal to Mrs Taylor and to the other parties, saying this:
"I refer to your Notice of Appeal dated 19th September 1994 from the decision containing summary reasons of the Industrial Tribunal sitting at Manchester which was promulgated 8th August 1994. The President of this Tribunal has perused the papers and has directed that the case be listed before him sitting alone to hear the parties before deciding whether the case can proceed to a full hearing without full reasons."
Despite that letter it does not appear from what I have heard today from Miss Hardy, who appears for the Appellant, that any steps have been taken to obtain the Full Reasons. There is no explanation available at present as to why these steps have not been taken. Accordingly the Rules of the Industrial Tribunal, Rule 10(4) Mrs Taylor is out of time for applying for Full Reasons. Under those rules the Full Reasons must either be requested at the hearing, orally, or, if not made then, the request must be made in writing after the hearing within 21 days of the date on which the document containing the Summary Reasons is sent to the parties. That does not appear to have been done. There is no explanation why that has not been done.At the hearing today, Ms Hardy made an application on behalf of Mrs Taylor for leave to amend paragraph 6(b) of the Notice of Appeal. I pointed out that it is not possible to deal with that, in the absence of Extended Reasons. It is not possible to proceed with the Appeal without such reasons. Ms Hardy said that an application had been made to the Industrial Tribunal for the Notes of Evidence of the Chairman. That had been refused. In my view, it was rightly refused. The Industrial Tribunal is under no obligation to produce Notes of Evidence to the parties, in the absence of an order made by the Appeal Tribunal. Such orders are only made where the Notes of Evidence are necessary for the purposes of conducting an Appeal on a point of law. That is a rare event.It appears, therefore, that as far as Mrs Taylor is concerned, her case is in a state of disarray. It is certainly not in a proper state to proceed. The point taken by the Respondents to the Appeal, Mr Higginson, acting on behalf of four others, and Ms Kaveney representing herself, in a combined Skeleton Argument, is this:[Is Mrs Taylor "contravening statutory regulations by supplying only summary reasons in support of her appeal."The answer is "yes".Mr Porter, who appears for the Secretary of State, was not served with a Notice of Appeal. He is not directly concerned with the matters today. No order was made against the Secretary of State. As far as he is concerned the decision of the Industrial Tribunal is entirely satisfactory. It would therefore be in the Secretary of State's interest that this Appeal by Mrs Taylor does not proceed.The question I have to decide is this, "do I strike out the Appeal today, for non-compliance with Rule 3 of the Employment Appeal Tribunal Rules 1993 , or do I allow Mrs Taylor a last chance to obtain the Full Reasons". I have already pointed out the difficulties that there may be in the way of her doing that.I have little sympathy with the way in which this Appeal is conducted. But, in my view, the interests of justice require that Mrs Taylor be given one last chance, in which to put the Notice of Appeal in order. What I propose to do is this; to adjourn this hearing for directions on these terms; that within seven days an application is to be made by, or on behalf of, Mrs Taylor to the Industrial Tribunal to extend the time for written reasons and for her to make an application for Full Reasons. If that application is unsuccessful, this matter will be re-listed. The Appeal will not be allowed to proceed unless those representing Mrs Taylor can satisfy me that it is possible to hear this Appeal without Full Reasons. It is possible for that to be done, if the Tribunal is satisfied that an Appeal can, having regard to the interests of both sides, be properly conducted on the basis of Summary Reasons only.The reason I take this course is that what are described as Summary Reasons in this case, are, in fact, more detailed than normally provided as Summary Reasons. It may be possible, I say no more than that, for Mrs Taylor's representatives to persuade me that the case can go on to a Full Appeal only on the basis of those reasons, if she is unsuccessful in obtaining Extended Written Reasons.The position is urgent. An application must be made within seven days for the Extended Reasons. It will be necessary to include in that an application to extend the time for asking for them. If that application is not made within seven days the Respondents can apply for an Order to Strike out the Appeal.There is an application by the Respondents to the Appeal, who have appeared. Mr Higginson, Mrs Kaveney and Mr Porter for the Secretary of State, for the costs and expenses incurred today. The Employment Appeal Tribunal has power under the Rule 34 of the Employment Appeal Tribunal Rules 1993 to make orders for costs or expenses in the following circumstances:
"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
"(2) Where such an order in made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer ..."
Applications for costs and expenses are made by the Respondents. They are resisted by Ms Hardy, on behalf of Mrs Taylor. The point she has made in resisting the application is that, she believed that this would be an ex-parte hearing, not attended by other parties. She said that her client is making an application for legal aid.In my view, this is a proper case for ordering costs and expenses to be paid by the Appellant. The need for the hearing for directions has been caused by the failure of Mrs Taylor and her advisors to make an application for Full Reasons for the decision, either at the time of the hearing or within 21 days of being notified of the decision and Summary Reasons; or at all since 25th November 1994 when the letter was sent to her solicitors with copies to the Respondents to Appeal, saying that the meeting would have to take place in order to decide whether the case could proceed to a Full Hearing without Full Reasons. Full Reasons still have not been applied for. Hence the order I have made. In my view, the meeting today was brought about by the unreasonable conduct of Mrs Taylor in seeking to pursue this Appeal without taking the steps required by the Rules for obtaining the necessary documents with which to bring the Appeal.I will make an order that the costs and the expenses of Mr Higginson, Mrs Kaveney and the Secretary of State for Employment be paid by Mrs Taylor. I direct that those sums be assessed by the Taxing Officer. Each of those parties must submit to the Tribunal an estimate of the costs or the expenses they have incurred, together with documents which establish that they have actually incurred those expenses.