Giles v Rover Group Ltd [1997] UKEAT 338_97_2506

EAT
Giles v Rover Group Ltd
[1997] UKEAT 338_97_2506 · 1997-06-25

JUDGE J HULL QC :

This is an appeal to us by Mr Harry Norman Giles against a decision of the Industrial Tribunal sitting at Reading by its Chairman, Mr Trickey sitting alone, on 31 January 1997, who on 10 February published his decision which I will refer to in a minute.The appeal is conducted by Mr Giles in person. He has appeared before us and invited our attention to several documents. We have, in fact, read (to the best of our ability) all the documents which have been sent to us. They include a letter dated 28 February 1997, which was sent by the Office of The Parliamentary Commissioner for Administration. He is popularly called the Ombudsman. This was written to Mr Heseltine, in his capacity as an MP, dealing with various matters including the complaint which had been made concerning the Child Support Agency.There are a number of matters which Mr Giles has been concerned with and which he thinks have occurred wrongly. Among the matters which have been dealt with, not only by the Ombudsman, but by the European Courts and other bodies and officials, there are two which appear to us to have primarily concerned the application to the Industrial Tribunal.Mr Giles complains that his employers, or erstwhile employers, Rover, have made deductions improperly from his pay; first, at the behest of the Child Support Agency and secondly, at the behest of the Oxford Council, with the support of the Magistrates apparently, who want arrears of Council tax which they say are due. Those did lead to the deductions and so Mr Giles made his complaint to the Industrial Tribunal which I must now refer to. That is to be found at page 6 of our bundle and Mr Giles complains against "Rover & CSA & Council & Solicitor", all of whom he describes under the heading of "name of employer, organisation or person" and under the heading in box 1:
"Please give the type of complaint you want the tribunal to decide", he has written: "
Wages Act 1986. Deductions of Earnings" - that appears to refer to the matters that I have mentioned. "Labour Relations 1992 Act" - that seems to be the Trade Union and Labour Relations Act 1992 and "Breach of Contract Section 131" - that refers to the now repealed Employment Protection (Consolidation) Act 1978 and the right of an employee to bring civil claims, which he would otherwise have to bring in the civil court. He complains first and foremost in his particulars of Rover making deductions from earnings as his employer.The Respondents, the Rover Group Ltd, put in their Notice of Appearance, an IT3 as it is called. That is dated 15 November 1996. In it they wrote:
"The Applicant's contention that the Respondent unlawfully deducted wages from him contrary to the Wages Act is rejected. The deductions were at all times made in accordance with a Deduction from Earnings Order issued by the Secretary of State for Social Security pursuant to the Child Support Act 1991 and the Child Support Collection and Enforcement Regulations 1992. Other deductions from wages were made pursuant to an Attachment of Earnings Order obtained by Oxford City Council in respect of unpaid Council Tax.
The Respondent denied that it ever made any deductions from wages contrary to provisions of the Wages Act."So those were the issues so far as Rover were concerned. It does not appear to us that the Child Support Agency, the Council, a Solicitor or, as I see he puts, the Union collective, were ever served with these proceedings and so those were the issues with which the Industrial Tribunal would, in due course, be concerned.Now we have to turn to the provisions of the Rules and see what can happen when such a complaint is made to the Industrial Tribunal. It may, of course, proceed to a hearing without anybody but the parties being concerned and without asking the Tribunal for any directions. But the Tribunal may, whether it is requested by the parties to make directions, or if it is concerned itself to make directions without the parties asking it to, hold hearings, or give directions without holding hearings, simply on correspondence. And I am looking now at one of the things which the Tribunal can do under The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . Schedule 1 to those Regulations contains rules of procedure, which are intended to govern the Industrial Tribunals when they hear complaints of the sort made by Mr Giles. Rule 7 provides as follows, under the heading "Pre-hearing review".
"(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of - (a) the contents of the originating application and notice of appearance [I have referred to that] (b) any representations in writing; and (c) any oral argument advanced by or on behalf of a party."
So that is what it can do; it can hold a pre-hearing review.Then paragraphs 4 and 5 of Rule 7 say this:
"(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.
(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit."Then the Tribunal is to record what its order is and send it to the parties. Then paragraph 7 says the following:
"(7) If a party against whom an order has been made does not remit the amount specified in the order to the Secretary, either - (a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or (b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,
the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates."The explanation for that Rule is as follows:If the Industrial Tribunal, after hearing an application, comes to the conclusion either that the application was unreasonably made or that the response to the application was improperly or unreasonably persisted in, that is to say that either the application or defence to it is unreasonable and should not have been made, then the Tribunal can order the offending party, the party who has been unreasonable, to pay costs to the other side; and the Secretary of State came to the conclusion that it was right to give an opportunity to parties to come before it at an early stage to see what the Tribunal thought of what was being asserted at that stage. If the Tribunal came to the conclusion that there were no reasonable prospects of success for one party or another, then it could order that party to pay a sum of up to £150 to the Secretary to act as security for any order for costs which might be made.The importance of it is this, that that would be "a shot across the bow" to any party. It would be fair warning to that party that if they went on there was a real risk, in the view of the Tribunal at that stage, that they might not succeed; that they might be held to be unreasonable; that it might be felt by the Tribunal that there was no legal basis for what was being asserted; that the claim could not succeed and therefore, that it had been unreasonably put forward; or of course, as the case might be, that the defence was being unreasonably put forward.That was the underlying idea, and of course it was hoped that, if the Chairman did take that view on the hearing, then whichever party it was who was told by the Chairman that he thought they had no reasonable prospect of success, would consider very carefully whether they ought to go on, either with the claim, or the defence to the claim, as the case may be.In this case that was exactly what happened. The complaint, which I have referred to, the application to the Industrial Tribunal, came to the attention of the Chairman and the Chairman then held a hearing at which both parties were represented, both Mr Giles and Rover Group Ltd. Rover had a Miss Ruston, a Solicitor. That was held on 31 January 1997.Mr Trickey, as I say, sat as Chairman. He sat by himself and, having heard what was said, this was his order:
"1 The Tribunal considers that the contentions put forward by the applicant in relation to this case have no reasonable prospect of success.
2 The applicant is ordered to pay a deposit of £30 as a condition of being permitted to continue to take part in these proceedings."So that was the order and Mr Trickey gave reasons for his Tribunal's decision. They are at page 4 of our bundle.
"The Tribunal finds that the claim of the applicant has no reasonable prospect of success for the following principal reasons: (a) The applicant's claims for breach of contract and for unlawful deduction of wages relates solely to deductions made by the respondent under a Deduction from Earnings Order issued by the Secretary of State for Social Security in respect of the Child Support Agency and an Attachment of Earnings Order in favour of Oxford City Council made by the Oxford Magistrates in relation to Council Tax. The applicant confirmed that that was the sole extent of his claim."
He goes to say that deductions of this nature are permitted and then he says:
"I ascertained the ability of the applicant to comply with an order for payment of a deposit as a condition of being permitted to continue to take part in the proceedings and having done so he confirmed that he was able to pay the sum of £30 within a period of 21 days. Accordingly it is ordered that the applicant pay a deposit of £30 as a condition of being permitted to continue to take part in these proceedings. If the applicant persists in participating in these proceedings, he may have an award of costs made against him and could lose his deposit."
Of course orders of courts are to be complied with. Was this order complied with? It was not, and the Chairman then, 21 days having elapsed, on 17 March sent his decision as follows:
"Whereas an order was made herein on 31 January 1997 under Rule 7(4) requiring the applicant to pay a deposit in the sum of £30 as a condition for being permitted to continue to take part in these proceedings, that order having been sent to the applicant on 10 February 1997 and no such sum having been paid within 21 days of such sending, IT IS ORDERED that this application be struck out under Rule 7(7)."
And, of course, because the order had not been complied with, the Chairman at that stage had no option about making that declaration. The Rules provide that it shall be so.Now the appeal is brought to us against the order which was originally made for payment of £30. We have not been told by Mr Giles why he did not pay the £30, although he says that his means are very restricted. He cannot afford it now and he has pressed on us certain considerations regarding the matters which underlay his claims. He says that orders should not have been made against him by the Child Support Agency and the Act which relates to it, or at the behest of the Oxford City Council by the Magistrates.Those are matters which, of course, lie behind what happened in the Industrial Tribunal, but we cannot concern ourselves with those.The position is that an order was made by the Tribunal and the question we have to ask ourselves is, "Was it open as a matter of law to the Tribunal to make that order?". The Rules authorised the making of that order, "If the Chairman is of opinion that the claim has no reasonable prospect of success". That was the Chairman's view. Was he entitled to reach that view? Was there any material on which he could reach that view?. It seems to us, having read the papers with Mr Giles' assistance, that there was ample material on which he could have formed that view.It is not for us to say whether we would have formed the same view. It is for us to say whether there was material which, as a matter of law, entitled the Chairman to form that view. He did form that view. Was he entitled to make the order which he did? It is quite clear again, from what we have read, that he was entitled to do that. The rules authorise it. He exercised his discretion. It is not for us to exercise our discretion in place of the discretion exercised by the Chairman. That order has been made. It has not been complied with. Accordingly, the Chairman had no alternative under the Rules to declaring that the application was struck out and he did so declare.We have, none of us, been able to see any ground on which this appeal could properly succeed and so, having listened to what Mr Giles has had to say to us, and read the papers and considered the matter as carefully as we can, and this appeal being in our list under our Practice Direction, to see whether we can discover any grounds on which it can properly proceed, we have to say that it is our duty to dismiss it at this stage and we so order.The appeal is dismissed.