Bell v Direct Design (North) Ltd & Anor [1996] UKEAT 327_95_2207

EAT
Bell v Direct Design (North) Ltd & Anor
[1996] UKEAT 327_95_2207 · 1996-07-22
This appeal has been listed as a Meeting for Directions before me alone in consequence of the failure to comply with an Order made by the full Tribunal on the preliminary hearing of this appeal on 31st October 1995.I refer to the judgment given on that hearing. After hearing submissions from a friend of the Appellant (Mr J G Holt) we concluded that -(1) Mr Holt had not been able to identify an error of law in the decision of the Industrial Tribunal (p.5C);(2) but for some last minute submissions made by Mr Holt, on behalf of Mrs Bell, we would have directed that the appeal be dismissed there and then (p.6A);(3) we should, however, adjourn the preliminary hearing for affidavits to be sworn by Mr Drake, a solicitor, who acted for Mrs Bell at the Industrial Tribunal hearing, by Mr Holt and by Mrs Bell herself about a conversation alleged to have taken place at lunchtime during the hearing before the Industrial Tribunal. The circumstances of the conversation alleged by Mr Holt are summarised in the judgment.The Order of 31st October 1995 directed that the case be adjourned to a date to be fixed and that Mr Drake, Mr Holt and Mrs Bell
" Do provide sworn affidavits within 14 days of today's date in accordance with the judgment of the Employment Appeal Tribunal."
The affidavits were not served on the Tribunal within the period of 14 days. They had still not been served on this Tribunal in April 1996. The Registrar therefore wrote a letter to Mr Drake, with a copy to Mrs Bell, on 23rd April 1996 stating that it had been directed that the matter be set down for a hearing for directions before me and that a date and time would be notified in due course.A notice was sent to the parties on 2nd May 1996 directing that the case would be listed for hearing at 10.30 a.m. on 21st June. On 13th June 1996 Mr Drake wrote to the Tribunal asking for the Meeting for Directions to be postponed. Mrs Bell wrote a similar letter seeking an adjournment on 13th June 1996.The request for an adjournment was granted.On 26th June 1996 notice was sent to the parties stating that the case would be listed for hearing not before 2 p.m. on Monday 22nd July 1996.On 19th July 1996 a copy of an Affidavit sworn by Mrs Bell on 9th July 1996 was sent by Mrs Bell to the Tribunal by fax expressing regret at the delay and offering apologies.On the same date Mr Drake faxed a copy of an Affidavit sworn by him on 19th July 1996.On 20th July 1996 (a Saturday) Mr Holt faxed a copy of an Affidavit sworn by him on 19th July. He apologised for the delay allegedly "due to a number of circumstances, including ill-health."

Hearing on 22nd July 1996

At the hearing before me alone, Mr Holt and Mrs Bell appeared. Mr Drake did not attend. In a covering letter sent with his Affidavit he said that his firm was not instructed to conduct the appeal. They were therefore merely complying with Mrs Bell's request to file an Affidavit, as well as complying with the Tribunal's order. Mr Drake apologised for the delay with the Affidavit which he said had been
"...occasioned by the considerable change in circumstances which has occurred since the Order of 31st October and to which reference is made in the body of the Affidavit. Further explanation will be given by the Appellant and her friend, Mr J G Holt, who will be in attendance on 22nd July.
Furthermore, in deference to the Honourable Judge, we ask that the writer's non-attendance be excused in the circumstances as unfortunately he is already committed to a hearing in the High Court in Newcastle on the same day. Furthermore, we must point out that the writer does not have instructions to appear, as such, at the forthcoming hearing by reason of the Appellant's financial circumstances."The letter concluded by saying that Mr Drake could be contacted at his office on 19th July, and through his mobile 'phone on 22nd July, other than when actually in court.

Non-compliance with the Order

As the purpose of the Meeting for Directions was to decide what should happen next, I was concerned to establish why the Direction for the service of the Affidavits had not been complied with. My examination of the court file revealed that Mr Holt had telephone the Tribunal on 14th November 1995 saying that he would like an extension of time to lodge sworn Affidavits and would send a written request within the next 48 hours. There is no written request on the file. No extension of time was granted.There is also a note that on 15th December 1995 a 'phone call was made to the solicitor, Mr Drake, and the Tribunal were informed that Affidavits had been prepared and were awaiting approval and that they would be sent as soon as possible.There is no record of any further communication about the Affidavits until Mr Drake wrote to the Tribunal on 18th April 1996 to explain why he and his client had not yet complied with the order of 31st October. The letter said -
"The preparation of Affidavits ordered by the learned Judge has been to some extent overtaken by events in this case in that the second named Respondent, Hamblewood Products Ltd, has recently called a creditors' meeting with a view to commencing proceedings for creditors voluntary liquidation. A Liquidator has been appointed with the approval of the creditors and a committee of inspection appointed under the terms of the Insolvency Act 1986.
Theoretically, it is not now possible for our client to continue these proceedings against the second named Respondent but is awaiting developments in the course of the liquidation in order to decide on whether to apply for leave to proceed.Accordingly we ask that this appeal be kept out of the list temporarily pending further developments in the course of the second Respondents liquidation about which we undertake to keep the Tribunal fully aware at all relevant times."On 9th May the Tribunal received a letter from Mr Peter Sargent, an Insolvency Practitioner in Halifax, informing the Tribunal that he had been appointed Liquidator of the Second Respondents on 12th April 1996.The next that was heard about the appeal was in a letter of 13th June 1996 in which Mr Drake asked for the Directions hearing fixed for 21st June to be postponed. He referred in the letter to the limited assistance which his firm was able to give to Mrs Bell and to the fact that she was assisted by Mr Holt in the course of her appeal. The letter contained a summary of current developments in support of the application for a postponement of the Directions hearing. The letter referred to major back problems suffered by Mr Holt and his inability to travel, to the inability of Mrs Bell to qualify for legal aid or to pay privately for legal representation and to the progress of the liquidation of the Second Respondent. The letter does not refer to the failure to serve the Affidavits.In her letter of 13th June 1996 to the Tribunal Mrs Bell asked for an adjournment stating that she wished to continue with the appeal despite the liquidation of the Second Respondent. She referred to Mr Holt's illness and to her correspondence with the Liquidator. As to her Affidavit she said this -
"I completed my Affidavit within 14 days as directed, as did Mr Holt, but my solicitor felt he would be compromised and seen to be negligent if he completed his. Irrespective of his advice that we need not send our Affidavits, Mr Holt and I both feel that we should now have them sworn and sent to comply with the previous Direction. We told our solicitor that we did not want to be in contempt of court. Please inform the President that if this adjournment is granted we will send the Affidavits as previously directed witnessed by another solicitor within 14 days."
The Affidavits of Mr Holt and Mrs Bell were not sent to this Tribunal until over a month later.

The Affidavits

At the Meeting for Directions Mr Holt appeared to assume initially that the Affidavits, though long out of time, had been accepted. I pointed out to him that this was not the case and that I was concerned that a clear direction of this Tribunal had not been observed.Mr Holt drew my attention to the explanations in the Affidavits for the long delay in complying with the Order of 31st October.

In paragraph 12 of Mrs Bell's Affidavit she says -

"I drafted this Affidavit on 13th November 1995 in response to the order of Mr Justice Mummery. I sent it to Ron Drake. He did not ask me to swear it so I had it sworn elsewhere. This is the reason for the delay in sending it to the Employment Appeal Tribunal."
It appears that the Affidavit was sworn before a solicitor at the Kirklees Law Centre and I was informed by Mr Holt at the Meeting for Directions that Mrs Bell had consulted that Law Centre more than once about her case.Mr Holt's Affidavit expresses regret on the penultimate page for the delay in sending the Affidavit. He says -
"...In fact my first Affidavit was completed within 14 days of the Order, when I had been able to inspect the file at Read Hind Stewart, but Mr Drake delayed matters.
As events have changed and information found so has the subject of this appeal and Affidavits."The Affidavit goes on to deal with enquiries made by the Liquidator and to the investigations into the affairs of Mr Dyson, now in South Africa.As already mentioned, Mr Drake's covering letter apologises for the delay in filing the Affidavit, relying on the subsequent change of circumstances. In his Affidavit he says this -
"..In the light of the events following this Tribunal's last Order, I apologise for the fact that it is has not been possible fully to comply therewith but ask that this Tribunal note the unusual circumstances referred to herein and which will be more fully explained by the Appellant and Mr Holt."
The main event referred to earlier in the Affidavit is that the second Respondents had gone into liquidation and that Mrs Bell had so far been unsuccessful in obtaining payment of her award from the first Respondents.

Conclusion

In my judgment, the time for service of the Affidavits should not be extended and this appeal should now be dismissed for the reasons mentioned in the judgment of 31st October 1995. There should be no further hearing of the appeal on the merits. There has been a failure to comply with the directions for the service of Affidavits. No good excuse has been shown in the Affidavits or in the correspondence or in Mr Holt's submissions today for failure to serve the Affidavits within the time stipulated. As was made clear in the judgment, the Affidavits were directed simply to deal with a specific incident which had occurred at the Industrial Tribunal hearing on 16th January 1995. The developments subsequent to the preliminary hearing on 31st October, though no doubt important to Mrs Bell in her dispute with the Respondents, do not affect the requirement to serve those Affidavits.As the hearing was simply a Meeting for Interlocutory Directions, the lay members (Mrs E Hart and Mrs R A Vickers) did not attend. They have, however, been shown copies of the Affidavits and of this judgment and have informed me that they concur in this decision.We would add that Mrs Bell and those advising her should consider the possibility of a claim by her against the Secretary of State under the statutory provisions in the Employment Protection (Consolidation) Act 1978 regarding insolvent employers.