Campbell v Ecclestone & Ors [1996] UKEAT 380_96_0811

EAT
Campbell v Ecclestone & Ors
[1996] UKEAT 380_96_0811 · 1996-11-08

JUDGE PETER CLARK :

On Friday 7 June 1996 this appeal was listed for a preliminary hearing before us. There was no appearance by or on behalf of the Appellant. Telephone enquiries were made of the Stoke-on-Trent Citizens Advice Bureau who were identified as the Appellant's representative in the Notice of Appeal. There was no reply. Finally, the case was called on at the end of our list for that day. In the absence of any representative for the Appellant, or explanation for such absence, we proceeded to determine the appeal in accordance with the papers before us, as is our usual practice.We dismissed the appeal for the reasons given in our judgment delivered that day. An Order dismissing the appeal was then drawn up.On 10 June a fax was received from Mr Thorndike, Counsel instructed on behalf of the Appellant. He had been unaware of the date fixed for the hearing and was investigating the position.That was followed by a letter dated 11 June from Mr Thorndike to the Registrar in which he said this:
"I was instructed by the Stoke-on-Trent Citizens Advice Bureaux to act for the Appellant on a pro bono basis. Although the papers sent by you [the EAT] to the CAB arrived, I did not receive them. I have been told they were posted on to me at my Chambers (and I am quite sure they were as the caseworker concerned is a meticulous person) but they never arrived."
He then goes on to deal with the system of the Chamber's diary and no entry had been made in relation to this case. We therefore presume that, having posted the papers, the Citizens Advice Bureau worker did not check up to ensure that Counsel was available for the hearing or indeed, that the papers and the listing notice had arrived in his Chambers. In that letter Mr Thorndike requested an opportunity to explain the position to us in person.Accordingly the Registrar wrote to him on 19 June 1996, in these terms:
"The matter will be relisted before the same Appeal Tribunal for a further hearing to determine whether there are grounds for a review under Rule 33(1) of the Employment Appeal Tribunal Rules 1993, and if so whether the Appeal Tribunal should review their original decision to dismiss this appeal."
The same Tribunal is reconstituted today to hear that application. Mr Thorndike has repeated before us the explanation given in his letter of 11 June. We accept his explanation and his apologies for not attending on the last occasion.However, that does not end the matter.Our powers to review a decision reached by this Tribunal are to be found in Rule 33(1) of the Employment Appeal Tribunal Rules 1993, which provide:
"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 - (a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff; (b) A party did not receive proper notice of the proceedings leading to the order; or (c) the interests of justice require such review."
Mr Thorndike accepts that sub-rules (a) and (b) do not apply in this case. He relies, as he must do, on ground (c) the interests of justice.That rule may be compared with the Industrial Tribunals power of review contained in Rule 11(1) of the Industrial Tribunal Rules of Procedure 1993. That rule contains two additional grounds for review, one of which, Rule 11(1)(c), arises where the decision was made in the absence of a party.Thus, the matter which we have to consider is whether or not to grant a review under Rule 33(1)(c).The current practice, represented by the decision on a review application in this Tribunal in Blockleys Plc v Miller [1992] ICR 749, is to regard the power to review as a narrow one. However, each application must be treated on its own merits.Here, the simple fact is that no representative attended on the first occasion that the appeal was listed due to an oversight. It is for the Appellant, or his or her advisers if instructed, to ensure that they attend a hearing, or to give an explanation in advance as to why they are unable to do so and to seek an adjournment.Although there is no equivalent to rule 11(1)(c) of the Industrial Tribunal Rules in our Rules, we have considered cases in this Tribunal on appeal which focus on the use of that power in the Industrial Tribunal. The general principle is that the party seeking a review on that ground must show a good and genuine reason for absence from the original hearing.For example, in Morris v Griffiths [1977] ICR 153, a party was taken ill on his way to the Industrial Tribunal hearing. The Tribunal proceeded to hear and determine the complaint in his absence. The absent party applied for a Review. The Chairman refused the application, without a hearing, on the grounds that it had no reasonable prospect of success. (See Rule 11(5)).On appeal this Tribunal, having heard the absent party, concluded that his explanation was an honest one and allowed the appeal, remitting the matter for a hearing of his application.In that case the reason for non-attendance was sudden illness. Here, we accept the genuineness of the explanation put forward by Mr Thorndike. It was due to the fault of the Appellant's advisers. Is that a good and sufficient reason for holding a review?In our judgment it is not. From time to time advisers overlook the time limit for lodging an Originating Application to an Industrial Tribunal, or for lodging a Notice of Appeal at this Tribunal. That is generally not a good ground for extending time, particularly where skilled advisers are retained. The Citizens Advice Bureau is a skilled adviser. See Riley v Tesco Stores Ltd [1980] ICR 323. What may be regarded as a strict approach by this Appeal Tribunal may be seen from Duke v Prospect Training Services Ltd [1988] ICR 521, where a decision by the Registrar to allow a one day extension for appealing was overturned by a full Tribunal (Popplewell J. presiding). The explanation put forward, namely that the Appellant's Solicitor had overlooked the time limit due to pressures of work, could not be regarded as a proper excuse or exceptional circumstances justifying an extension of time.In this climate, and after considering Mr Thorndike's submissions, we have decided that insufficient grounds have been shown to justify our holding a review under Rule 33(1)(c).Accordingly this application is dismissed and our original order dated 7 June must stand.