Holgate v London Borough Of Lambeth [1996] UKEAT 986_95_0312

EAT

Holgate v London Borough Of Lambeth

[1996] UKEAT 986_95_0312 · 1996-12-03

JUDGE D M LEVY QC:

In the course of the hearing of the appeal by Mrs Holgate against various orders of an Industrial Tribunal, Mr Cronshaw who appears for her, has addressed us on the basis that there was a live appeal against an order, made by an Industrial Tribunal following Mrs Holgate's application to it. It was made in respect of an adjournment in these circumstances.

Mrs Holgate's application was due to be heard on 10 July 1995. By a letter dated 29 June 1995, attached to which was a medical certificate dated 3 July, Mrs Holgate sought an adjournment. It is common ground that the application was received by an Industrial Tribunal on 4 July. The application was refused by a letter dated 7 July in these terms:

"I acknowledge your letter of 29th June 1995 (attached to Medical Certificate dated 3.7.95) in which you ask for a postponement of the hearing of this case, listed for 10th July 1995.

The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay. Your request for a postponement is refused for the following reason(s):(a) In view of the hearing date (10.7.95) your request comes too late. Please refer to the warning regarding this point which is in the notice of hearing;

(b) and moreover, your opponent has strongly objected to the postponement requested.

Yours faithfully."

That order was made as long ago as 7 July 1995 and was known to Mrs Holgate (the Appellant here) and her advisers from 10 July 1995 at the latest.

No appeal was made against that order until 2.00 pm today, the appeal having been opened this morning. It is right to say that there was an ex parte hearing under the Directions on 23 February 1996, when the Tribunal ordered that leave to amend the Notice of Appeal be granted if desired within 14 days; it is right to say that a Notice of Appeal, in draft, was sent to the Respondent which may have raised and indeed probably did raise this point as it is dealt with in the Respondent's skeleton argument.

When however, Mr Cronshaw sought (after lunch) leave to amend the Notice of Appeal, Ms Joffe, who appears for the Respondent, referred us to Rule 3 of the Employment Appeal Tribunal Rules 1993 ("the 1993 Rules"). This clearly states the procedure for launching an appeal and includes a paragraph dealing with delay. As Ms Joffe has reminded us, the Appellant seeks not to amend the Notice of Appeal, but to launch a new appeal about a different order of the Industrial Tribunal.

Mr Cronshaw drew our attention to Order 39 of the 1993 Rules and particularly Rule 39(3) which provides:

"(3) The powers of the Tribunal under paragraph (2) extend to authorising the institution of an appeal notwithstanding that the period prescribed in rule 3(2) may not have commenced."

In the exercise of our discretion we think it would be quite wrong to allow this new appeal to be added to the appeal at this very late stage, when it is something which could have been raised earlier although Ms Joffe is in a sense ready to meet it. It may well be that if the Notice of Appeal had been in proper form she might have taken objection, for instance to affidavit evidence which has been put in by Mrs Holgate on this aspect of the appeal. Time limits have to be obeyed. This application was made very much after the 24th hour and we cannot think it right in the circumstances, to amend the Notice of Appeal in the way that Mr Cronshaw now seeks. We should add that we have not had, even at this stage, any Notice of Appeal from Mr Cronshaw dealing with this proposed appeal.

We therefore dismiss the Appellant's application for leave to appeal out of time from the decision of the Industrial Tribunal given by letter dated 7 July 1995 seeking an adjournment of the hearing scheduled for 10 July 1995.

JUDGE D M LEVY QC :

This is an appeal by Mrs Joy Holgate to an Industrial Tribunal against a decision of an Industrial Tribunal held at London (South) on 10 and 11 July 1995. On the second day the Tribunal unanimously decided to dismiss her application (which had been made claiming sex and racial discrimination and victimisation) on the grounds that the manner in which the proceedings had been conducted by the Applicant had been scandalous and frivolous and that they should be struck out for want of prosecution.

It is a sad case, because the decision of the Tribunal means that Mrs Holgate has never had a hearing of her application to the Industrial Tribunal on its merits, but our task is to see whether the decision made by the Tribunal is one which could properly have been made, it being a matter of discretion for the Tribunal in the circumstances of the case.

The short history about the hearing itself is that a doctor had written a note shortly before the hearing which we find at page 36 of our bundle. It is not a satisfactory note for reasons which appear as soon as it is read out. It is dated 3 July 1995 and it reads:

"In my opinion Mr/Mrs/Miss Joy Holgate of 24 Park Avenue, Mitchum is/was suffering from stress reaction and is/was able/unable to attend school/work/court next week."

It was signed by her medical practitioner.

Armed with that letter there was an application made to the Industrial Tribunal to adjourn the hearing of the case which had been fixed for six days to commence 10 July 1995. The application was dealt with by the Chairman in writing. He refused the application. The letter of refusal to Mrs Holgate dated 7 June 1995 reads:

"I acknowledge your letter of 29th June 1995 (attached to Medical Certificate dated 3.7.95) in which you ask for a postponement of the hearing of this case, listed for 10th July 1995. [We would add that the letter was clearly inadvertently dated, as appeared from the evidence].

(b) and moreover, your opponent has strongly objected to the postponement requested."

Mrs Holgate says in evidence that she received this letter on 10 July, the morning of the hearing itself.

However that may be, an application to appeal against this decision was made on the afternoon when this appeal started and for reasons which we have already given, it was refused.

At the hearing on 10 July a Mr Boyo appeared. An issue has arisen as to whether he was representing Mrs Holgate at the hearing, as the Tribunal and its note says, or as to whether he was only to represent Mrs Holgate for the purposes of making an application to adjourn it. In the morning, putting it shortly at this stage, the Chairman adjourned the matter for Mr Boyo to have words with Mrs Holgate with a view to the hearing commencing in the afternoon.

In the afternoon Mr Boyo returned to the court and at the end of that afternoon (putting it shortly) the Tribunal said that the matter would go ahead the next day. The next day Mrs Holgate's daughter attended and brought a letter which was recited in the Chairman's decision and is in our bundle at page 22. It reads:

"To the Chairman of IT Case No. 54079/94

Mrs J Holgate v LBL

Dear Sir,

I refer to the above case in which you have invited Mrs Holgate back to todays hearing, and say that she is very ill as per her doctors medical certificate which you have received confirming her present ill health. You can contact the doctor if you so wish.

Mrs Holgate has requested that you postpone this hearing to a later date on the grounds of ill health to enable her to present her case.

Mrs Holgate is representing herself in this case and presently under medication that will enable her to get better and able to give a full and accurate account of her four charges against Lambeth Council adequately; namely unfair dismissal, race, sex and victimisation. I therefore on behalf of the plaintiff (my mother) request this hearing to be postponed to a later date.

Thank you

Adaora (plaintiff's daughter) [and a signature]

PS. My copy for Mrs Holgate's reference."

The Chairman comments on the daughter's letter and what happened on the day in the Extended Reasons at the end of which the Industrial Tribunal dismissed the application.

From this there was an appeal dated 12 September 1995. Paragraph 3 of the Notice of Appeal reads:

"3. The appellant appeals from the decision of the Industrial Tribunal on 11/07/95, not to adjourn the hearing and the subsequent decision to strike out the application."

There was an ex-parte hearing on 23 February 1996 when this court ordered that the Tribunal be allowed to proceed to a full hearing of the Employment Appeal Tribunal. The order reads:

"This Tribunal further orders that leave to amend the Notice of Appeal be granted if desired within 14 days and the Tribunal further orders that the Appellant files an affidavit within 28 days dealing with the circumstances in which she was unable to attend the Industrial Tribunal and dealing with the extent to which she prepared for the Industrial Tribunal hearing."

Then, after a paragraph which I need not now read:

"The Tribunal directed the Chairman to be asked to produce his notes of evidence in relation to 10 and 11 July 1995."

The Notice of Appeal was not in fact amended so the matters before us are the appeals against the refusal on 12 July not to adjourn the hearing and the subsequent decision to strike it out. An affidavit was sworn by Mrs Holgate. Counsel for the Respondent has objected to parts of it as inadmissible, that is passages in the affidavit running from the last sentence of paragraph 11 to the end of paragraph 13. We have read those paragraphs de bene esse . It is a matter for us what weight we put on any affidavit evidence which, of course, has not been tested by cross-examination.

Yesterday evening the Respondent lodged an affidavit in reply which exhibits three contemporary letters. These are material to the matters put before us in Mrs Holgate's affidavit. Mr Cronshaw has submitted that it would be wrong for us to look at that affidavit. We think it right to look at the exhibits to that affidavit as they enable us better to appreciate the context of the affidavit of Mrs Holgate.

It is common ground between the parties that the approach on allegation to strike out is to be found in the decision of the Court of Appeal in Carter v Credit Change Ltd [1980] 1 AELR 252. The parties have taken us to different parts of the Judgment. We will set out the passages which the Counsel refer to at this stage:

For the Appellant, Mr Cronshaw refers us to the passage at page 256, where Stephenson LJ, in the Court of Appeal, approves a passage from a Judgment of Phillips J presiding in the Employment Appeal Tribunal in the case of Jacobs v Norsalta Ltd

[1977] ICR 189

. The passage reads:

"The power [to strike out] ... must not be used arbitrarily or capriciously. It must certainly not be used in order to defeat the general object of the legislation. But, subject to that, ... the industrial tribunal has a complete discretion, so long as it exercises it judicially, to postpone or to adjourn any case provided there is a good, reasonable ground for so doing.. The desirability of disposing of proceedings speedily is not an overriding factor."

The passage to which Ms Joffe particularly referred us is to a reference made to the Judgment of Arnold J in this Tribunal in Bastick v James Lane (Turf Accountants) Ltd

[1979] ICR 778

which reads as follows:

"Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter into account which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively, if we do not find that, that the decision which was made by the tribunal or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

We have also been referred to the decision in the Court of Appeal in Dick v Piller [1943] 1 KB Reports 497 where Scott LJ said:

"The case resolves itself into a short question of law. If an important witness - a fortiori if he is a party - is prevented by illness from attending the court for an adjourned hearing, at which his evidence is directly and seriously material, what is the legal duty of the judge when an adjournment is asked for? In my view, if he is satisfied (1) of the medical fact and (2) that the evidence is relevant and may be important, it is his duty to give an adjournment - it may be on terms - but he ought to give it unless, on the other hand, he is satisfied that an injustice would thereby be done to the other side which cannot be reduced by costs."

Against that background, we turn to the submissions made by Mr Cronshaw as to why the decision of the Industrial Tribunal was wrong.

His first submission was that the Appellant was denied natural justice because a lay person, instructed by her to undertake a strictly limited task (that is informing the Tribunal of her request for an adjournment) effectively performed a different task.

We do not accept the submission that the lay person, Mr Boyo, was instructed by Mrs Holgate only to perform a limited task. It is apparent peradventure, from reading the Chairman's notes, that Mr Boyo was given a greater role by Mrs Holgate. He had appeared for her at one of the Interlocutory Hearings prior to the main hearing and further, it was quite clear from the whole of his conduct on the first morning of the hearing that he was there to do more than simply to ask for an adjournment.

Mr Cronshaw submitted that Mr Boyo was merely a friend helping out for a limited purpose and did not have the conduct of the case. He pointed to certain passages in the notes which supported this, namely that Mr Boyo asserted that he would represent the Appellant only for the first part of the six days of the case set aside from the hearing of the application. Thereafter somebody else would take over. Secondly, he refers to the letter of the Appellant's daughter, to which we have already referred and thirdly, he pointed to the block in the IT1 which states Mrs Holgate would be relying on "self-representation". None of those seem to us to contradict the fact that, as the Chairman found, Mr Boyo acted as her representative on the day that the application was called on.

Secondly, Mr Cronshaw submitted that there was significant element of oppression and unfairness in the Tribunal's conduct. There has been no affidavit evidence to support such allegation which the 1993 Rules require if elements of oppression and unfairness are to be made.

Thirdly, he refers to particular decisions which find their way in the Reasons. He says there was insufficient account taken of the medical certificate. Evidence of such failures he submits is provided because the Tribunal put the proposition to Mr Boyo that there was no real medical evidence before it to justify an adjournment. The Tribunal was so disbelieving of the medical certificate, he submitted, that they were disregarding it.

It is clear that the existence of the medical certificate was something to which the Tribunal attached some weight. It was one of the matters which they looked at when they exercised their discretion.

Mr Cronshaw further submitted that the Tribunal wrongly took into account an apparent lack of preparation. He made detailed submissions as to why this was wrong. We cannot accept those submissions. It is quite clear that, after the morning session, there was a suggestion that Mr Boyo was going back to see the Applicant, and would return to the Tribunal with bundles and statements and the like. It is clear that he did not do so.

Further, the three letters which were exhibits to the Respondent's affidavit suggest that the Appellant may well have been unprepared for the hearing. The first of those letters is dated 16 June to Mrs Holgate. It has, as a central paragraph:

"We are now preparing the matter for hearing and will shortly be providing you with a copy of the bundle of evidence which the Respondents will by relying upon at the hearing. In the hope that a bundle can be agreed could you let us have a list of any documents which you wish to be included in the bundle, together with copies of any documents upon which you intend to rely in support of your claim.

. ..

We note you intend to call seven witnesses in support of your case at the hearing. Please could you supply us with a full list of names of the witnesses you are intending to call as soon as possible."

On 29 June the Respondent wrote to Mrs Holgate:

"We refer to our letter of 16th June and now await hearing from you as a matter of urgency regarding the information previously requested."

On 6 July a further letter was written which, after referring to these letters and continued:

"In view of the proximity of the hearing we have no alternative in the circumstances but to assume that you are proceeding with your claim and we shall prepare our case accordingly. However we reserve the right to bring this matter to the attention of the Tribunal and we shall have no hesitation in making a claim for our costs if in fact you decide to withdraw your claim under The Wages Act.

. ..

We also enclose a bundle of documents which we intend to rely upon at the hearing. We reserve the right to add to this bundle and any additional papers to be added to the bundle will be supplied to you at the hearing."

We understood from what Mr Cronshaw tells us today that there was evidence in the affidavits of Mrs McKane that those documents were delivered by hand. Mr Cronshaw submitted to us, in the course of the hearing, that his instructions were that the bundle had never been received. Those instructions cannot be given much weight, particularly in view of the fact that, in her affidavit, Mrs Holgate has failed to refer to the letters from the Council dated 29 June and 6 July, but has exhibited some others sent to her in the same period.

We think that the case, as the Tribunal suggested, did have signs of the adjournment being sought, not simply because Mrs Holgate was not in the best of health, but because a six-day hearing was something which she was anxious to avoid.

We should add that a further matter put before us by Mr Cronshaw was the fact, which was correct, that shortly before the hearing a warrant for possession had been served on Mrs Holgate, the effect of which might be to make her leave her house very shortly. That was referred to in the Chairman's Extended Reasons. It is something which would obviously make a lady suffering from stress more concerned in general terms about litigation where she was to be an active litigant, but this is something which we have no doubt was taken into account by the Chairman, it being expressly referred to in the Reasons.

Mr Cronshaw further submitted it was perverse for the Tribunal to hold that the Applicant was well enough to appear. Mr Cronshaw submitted that the Tribunal could not reasonably have taken Mr Boyo's statement that she would come in the next morning into account because as a man without medical qualifications he was clearly not able properly to comment on the Appellant's fitness to attend and should not have been asked to.

It is clear that from the evidence before the Tribunal that Mr Boyo was in contact with the Appellant at the time that the applications to adjourn were being made by him. We can see no reason at all why a Tribunal should not ask the representative of the Appellant when an adjournment is being sought, how long he thinks it is going to be before the person he is representing will be able to appear.

It seems to us the fact that Mr Boyo reduced the period from six months to one month was something which the Tribunal was entitled to take into account when they looked at the application of Mrs Holgate, and also when they considered what weight they could give to Mr Boyo's submissions.

Mr Cronshaw relied on the letter from the Appellant's daughter, which was undoubtedly written with her authority, in which she re-stated that she was too ill to attend and would be representing herself. This clearly contradicted what Mr Boyo had been saying in so far as he was submitting he was representing her. It may well be that after day one of the hearing Mr Boyo was not to attend further. It does not follow from that that Mr Boyo was not the person whom the Applicant had deputed to represent her on day one.

Mr Cronshaw referred to the clear omissions on the medical certificate as an obvious oversight by the doctor. What in our judgment is more significant is the fact that there is no medical evidence to suggest for how long the Appellant is going to be ill. The Tribunal has no means of knowing when, if it is to adjourn the six-day hearing, it can be reinstated. When an applicant, albeit in person, makes an application to adjourn it is a matter for the Tribunal to consider the quality of the medical certificate and the weight to be attached to it.

We have already mentioned the warrant for possession which is referred to at paragraph 8 of the Reasons. Mr Cronshaw submitted that the Tribunal should not have disregarded the warrant because the wrong building society was named by Mr Boyo. He submitted that a warrant for eviction from a dwelling house, three days after the end of a six-day hearing, provides good reason to believe the suggestion that the Applicant was unable to attend, due to anxiety and stress. What the paragraph states is:

"8. Mr Boyo claimed the Applicant suffered from high blood pressure - that she is a single parent and that she is emotionally distraught and is suffering shock and that her house is under threat from the building society. ..."

Then, there is a sentence:

"9. Mr Boyo mentioned the Halifax Building Society, but the warrant of possession given later showed the proceedings had been instituted by the Woolwich."

The fact that the wrong Building Society was named does not seem to us to mean that the Tribunal did not take into account the claim by Mr Boyo that the Applicant had high blood pressure and what stemmed from that. It was a matter which we are sure the experienced Tribunal took into account.

Mr Cronshaw pointed out that at paragraph 9 of the Reasons it was stated that no note was produced from the Specialist at the Springsfield Hospital whom the Appellant saw twice a week. He submitted that, as one medical certificate had been produced, no other medical certificate was necessary. If a representative of a party makes submissions about a party seeing a specialist, in our judgment, it is a matter which the Tribunal is entitled to take into account, particularly if no medical certificates had been produced as regards the matter by the medical practitioner who provides a certificate.

Mr Cronshaw submitted that at paragraph 11 the Tribunal noted that, although Mr Boyo claimed that the Appellant had been unwell for one year, at the Directions Hearing, no indication had been given of the Applicant being unwell. He submitted that the fact that no indication had been given on 9 February 1995 was a factor which was irrelevant at the time in July. It is a factor which, in our judgment, the Tribunal is entitled to mention. We do not know what weight they gave to it.

Those were the matters which Mr Cronshaw drew to our attention. We are sure that all the matters of fact, which were put before them, were matters which were considered by the Tribunal.

We do not accept Mr Cronshaw's submission that matters were wrongly taken into consideration by the Industrial Tribunal or that undue weight was given to them. Indeed, in our judgment, proper matters were taken into consideration and the Tribunal came to the conclusion to which they were entitled to on the facts which were before them.

It follows from what we have said that the claim for perversity is simply not made out. The position is, as the Tribunal stated, the hearing was adjourned first from morning to afternoon on day one and subsequently to the next day.

The Tribunal, on the evidence before it, was well able to come to the conclusion which it did. In our judgment it was entitled so to do. In those circumstances this appeal must be dismissed.

We would say in conclusion that Mr Cronshaw has made a sturdy and determined effort to persuade us otherwise but, at the end of the day, having careful considered all those submissions, there are no grounds on which we can properly disturb the decision against which this appeal is mounted.