Bovis International Ltd v Smithard [1997] UKEAT 1318_97_0812

EAT
Bovis International Ltd v Smithard
[1997] UKEAT 1318_97_0812 · 1997-12-08
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against a refusal by an Industrial Tribunal to grant an application to adjourn the proceedings. The decision of the Tribunal is contained in a letter dated 1 December 1997. It reads as follows:
"1. I refer to your recent request for a postponement of the hearing in this case.
2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.3. The Chairman refuses your request for the following reason:The Respondent has known of the dates for two months and should have informed the Tribunal earlier if they caused inconvenience. If these appointments have recently been made they should not have been with knowledge of these dates."The reference to two months is a reference to the fact that, on 18 September 1997, the Industrial Tribunal gave notice to the parties of the two-day hearing due to take place on 15 and 16 December 1997.The background to this appeal may be very shortly stated. Mr Smithard says that he had been employed by Bovis International Ltd and that he was unfairly dismissed by them. He presented a complaint to an Industrial Tribunal alleging unfair dismissal, unfair selection for redundancy, failure to consult and/or wrongful dismissal and breach of contract in failure to pay monies in lieu of notice. The dates of his employment were from October 1988 to 30 November 1996.That application was presented to an Industrial Tribunal on 26 February 1997 and an IT3 was provided by Bovis on 14 March 1997. They admitted the dismissal, but will contend that in the circumstances the dismissal was fair.There was a hearing date fixed by the Industrial Tribunal for 8 May 1997. That was not convenient to the Applicant. As the name of the company reveals, Bovis International is an international company, and the Applicant in this case is one of those people who, in the course of his employment by Bovis, travelled widely on their behalf on international contracts. Having been dismissed, as I understand it Mr Smithard managed to obtain other employment and was abroad and, accordingly, wanted to be given adequate notice of the proceedings so that he could make the necessary arrangements to travel home.In addition to that, it was his view, shared by Bovis, that two days would be required for the hearing and, in any event, the listing appears to have taken place contrary to the normal practice which is to invite parties to give the Tribunals details of the dates to be avoided. Be that as it may, the Industrial Tribunal, on an application made on behalf of the Applicant, adjourned the case from 8 May and, as I have indicated, on 18 September gave notice of a new hearing date.During the course of the proceedings there have been a number of interlocutory requests. The Applicant's Solicitors have asked for further and better particulars. They complained that they have not been provided with them. When they were provided with them, rather late in the day, the responses appeared to be unsatisfactory and it took quite some time, in fact to 3 June before the requests were finally answered.There has been a problem in relation to exchanging lists of documents and witness statements. Both parties, very sensibly, agreed that an exchange of witness statement would facilitate the proper hearing of the case. In September the Applicant's Solicitors indicated they were ready to exchange their list and their witness statements, but it does not appear that Bovis were ready with theirs.So the matter progressed. There was pressure applied to Bovis to provide their list of documents and a list was provided, which has subsequently led to a request for specific discovery, and in turn the Industrial Tribunal, perhaps late in the day, have made an order for discovery which has to be complied with by 10 December.The grounds on which the application for an adjournment was made, on behalf of Bovis, was set out in their letter of 26 November to the Industrial Tribunal. Bovis said that they found themselves in a similar position to that of the Applicant when he was wanting an adjournment in relation to the May fixture. They said:
"... we now find ourselves in a similar position with two key witnesses being involved in major construction issues in Malaysia and Athens respectively. The former commitment relates to a pending Malaysian High Court action. Fuller details will be provided if you wish. Both are wholly exceptional circumstances beyond our control."
And they went on to say that it would be impossible for them to fairly put forward their case unless those two witnesses were present.The day before that letter was sent, on 25 November the Applicant's Solicitors had written to the Tribunal complaining about the way that Bovis had been behaving, in relation to exchange of documents and witness statements, explaining that they had written to the Industrial Tribunal on various occasions concerning that failure and said:
"As you know there is a hearing of this matter fixed for Monday 15th and Tuesday 16th December next and Bovis' failure to comply with the rules of the Tribunal are causing prejudice not only to our client but to that hearing date."
They make the point that their client was currently working in the Philippines and needed to make special arrangements to travel home and that it was difficult to get an aeroplane booking. They also pointed out that they would have very little time to consider any documents that Bovis might disclose, together with their witness statements and they concluded as follows:
"It seems to us that we have little alternative, because of Bovis' conduct, to ask that the hearing date be vacated to a date to be fixed by the Tribunal giving our client 3 months notice of the hearing.
We also seek an Order that Bovis be compelled by way of Order to serve their List of Documents and their witness statements immediately.

We look forward to hearing from you as a matter of urgency on this matter."

Accordingly, it is submitted on behalf of Bovis, that the decision of the Industrial Tribunal not to grant a postponement of the case was perverse. It is said, first of all, that the application was made three weeks before the December hearing, that the Applicant had previously applied three weeks before the first hearing. The Tribunal had granted his request, but the refusal of Bovis' request showed that justice was being done unevenly.Secondly, it was said that both parties have requested a postponement. The Applicant had requested a postponement in his letter of 25 November 1997 and the Respondents had asked on 26 November, and accordingly, it was wrong for the Industrial Tribunal to put the interests of the Tribunal itself, as it appeared to have done, before the interests of the parties in bringing this matter to trial. The Decision was therefore perverse, in the light of the fact that both of them were asking for the same thing.Thirdly, it was said that the Industrial Tribunal had acted perversely, because it was not right for the Tribunal to refer to the desirability of bringing the case to a hearing without delay. That was not a factor which the Tribunal should have taken into account in the circumstances.It seems to us that there is no merit in this appeal. It will be borne in mind that parties, when they come to a hearing, are always entitled to ask an Industrial Tribunal to postpone the hearing, or to adjourn, if the interests of justice so require.On the basis of the material before the Industrial Tribunal we can well understand why it was that the Industrial Tribunal have arrived at the decision that they did. In the first place, they gave the parties very good notice of the date when the hearing should take place. If there was going to be any difficulty in terms of witness availability, then the parties had ample time in which to inform the Tribunal of that fact, so that the Tribunal could then re-list the hearing as may be, without undue interference with the hundreds of other litigants' cases which will have been postponed, and held back, as a result of this case being listed for a hearing for two days. Telling a Tribunal late on in the day that an adjournment is required is not helpful.Secondly, the fact that the Applicant himself made the necessary arrangements to travel back, and has actually travelled back to this country and incurred, no doubt, considerable expense in order to be here, is a matter which we are entitled to take into account in considering this appeal.It seems to us that the fact that the Industrial Tribunal were prepared, on the first occasion in the circumstances in which I have described, to grant an adjournment, does not require them, on the second occasion, also to grant an adjournment. The circumstances here are wholly different, not least because a very long period of notice has been given to the parties.It is, as I see it, Bovis' own fault that they are in this difficulty. Secondly, as to the suggestion that both parties have requested an adjournment, that of itself will not be determinative the issue as to whether it should or should not be granted. The Tribunal are entitled to have regard to the interests of justice more generally. They are entitled to have regard to the fact that they know that justice can only properly be done between parties when matters are relatively fresh in the parties' minds.It is therefore, of proper interest to the Industrial Tribunal itself, which has to do justice between the parties, that cases should be timeously heard. In any event, they are also entitled to take into account the due administration of justice in the Industrial Tribunal, and that one party's case, when it is called on for hearing, is coming up before another party's case which is not being called up for hearing.Accordingly, it seems to us, that neither of the other two points are determinative of the Industrial Tribunal's approach to this matter. All that said, we are not unsympathetic to the position in which the parties have now found themselves. Bovis is an international company. The two witnesses, who are required, are apparently abroad, but it seems to us that Bovis should between now and 15 /16 December take all steps open to them to obtain such evidence as they can from those witnesses, so as to prepare themselves for the hearing on 15 and 16 December. I have in mind the possibility of written witness statements being obtained from these individuals despite the fact that they are abroad. There are fax machines, there are e.mail facilities, no doubt, in the Bovis organisation which can be made use of and, if necessary, an affidavit can be prepared.It seems to us that the Industrial Tribunal will wish to know, before any application is made at the hearing itself for an adjournment, that Bovis have taken all steps open to them to procure the evidence of these individuals, whether by flying them home or by providing written witness statements.We also take the view that it is likely, if they were to even consider entertaining an application for a postponement, that Bovis should fully compensate the Applicant for any costs that he has incurred in connection with his attendance and they will wish to pay particular attention to the contention, which has been made before us, that Mr Smithard would be completely prejudiced if the case did not take place, because he is a new starter in a new job and he will not be able to come over again in the near future without running the risk of losing his present employment.Those factors are best left to the Industrial Tribunal to weigh at the hearing on 15 December, were Bovis to repeat their application for an adjournment. All we can say at this stage is that we are not persuaded that it is arguable that the Industrial Tribunal Chairman's decision, recorded in writing, is other than one which fell within the scope of his discretion. We would wish to give no indication to the Industrial Tribunal as to how they should approach any renewed application, if such is made to them. That must be left to their good sense of justice and fairness. That is what they are required to do when considering any application for an adjournment.Accordingly, the appeal will be dismissed.