Faizi & Anor v Sadeh LOK H A Ltd [1997] UKEAT 480_97_2104

EAT
Faizi & Anor v Sadeh LOK H A Ltd
[1997] UKEAT 480_97_2104 · 1997-04-21

JUDGE PETER CLARK :

The first appellant, Mr Faizi, was employed by the respondent Housing Association from 1st July 1991 until his resignation or dismissal in November 1996, in the capacity of Chief Executive. The second appellant, Ms Mukerji was also employed by the respondent, latterly as personal assistant to the first appellant, from July 1992 until her resignation in late 1996. Both claim that they were unfairly dismissed by the respondent, and presented originating applications to the Industrial Tribunal on 7th November 1996.The general nature of the complaints, both of which are resisted by the respondent, is that the appellants were forced out by the actions of members of the respondent's managing committee.These are appeals against an order made by a Chairman, Mr Gould, at the Leeds Industrial Tribunal, between 4th and 7th April 1997, refusing their applications for a postponement of the substantive hearing in this case which is fixed for four days beginning on 29th April 1997.The material before the Chairman who made that order included letters passing between the appellant and respondent dated 2nd and 4th April 1997. In essence, the appellants complained that they had insufficient time to deal with the respondent's list of 172 documents served on them on 29th March 1997 before the hearing fixed for 29th April.The Chairman's reasons for refusing the appellants' application are contained in a letter to the appellants faxed on 21st April, today, in which he said:
"... on receipt of your request for a postponement, a copy of your letter was faxed to the respondents' solicitors who were invited to make comments on your request. Having considered the contents of their reply the Chairman decided that as the Directions Hearing had taken place on 28 January 1997 when the parties agreed that they and their witnesses would be available on the dates fixed for the hearing, that these were cases of alleged constructive dismissal, that the Originating Applications were presented on 8 November 1996 and therefore the parties (and the applicants in particular) had had ample time in which to prepare their cases, there was no valid reason for a postponement."
The relevant chronology begins on 28th January 1997 when at the Directions Hearing no orders were made but it was agreed that the applicants would provide further and better particulars of their case within 14 days and the respondents would provide discovery by list within 28 days thereafter. Those particulars were not provided, and on 12th February the respondent requested an order for further and better particulars or the originating applications, which order was made the following day with a time limit of 14 days. On 17th February the respondent received the further and better particulars under cover of a letter dated 11th February; and on 25th March the respondent provided discovery by list, that letter arriving on 29th March.The grounds of this appeal which has been presented on behalf of both appellants by Mr Faizi are first, that the respondents, he says, have widened the issues in the case. Secondly, that a High Court writ has been issued by the respondent against the first appellant claiming damages for breach of his contract of employment, that writ was served on him about one week ago. Thirdly, that in view of the number of issues now raised in the case it is not in the interests of justice for the cases to proceed to a hearing next week. Mr Faizi contends that the appellants are not in a position to properly prepare their case before 29th April. Fourthly, and following from the third point, he says that in view of the number of documents which have now been introduced into the case and their wide-ranging nature, he needs further time in which to go through them. He says that there could be as many as 400 to 500 pages of documents in due course. That he has a young family and has recently moved to London to take up new employment with a Local Authority here; and that in all the circumstances it is unrealistic to expect him to be ready to conduct this case on behalf of the appellants on 29th April.We remind ourselves that our jurisdiction to interfere with interlocutory orders made by Chairmen of Industrial Tribunals is the same as that relating to final decisions of Industrial Tribunals. See Medallion Holidays Ltd v Birch [1985] ICR 578 . The relevant principles are set out in the judgment of Arnold J in Bastick v James Lane Turf Accountants Ltd [1979] ICR 778 at page 782, where he said in relation to allowing such appeals:
"... Either we must find, in order to so to do, that the tribunal or its chairman, has taken some matter 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."
That statement of the law was expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908 , at 918F.Returning to the grounds of appeal advanced by Mr Faizi, all these matters were before the Chairman who considered them when making his original order, save for the issue and service of the High Court writ against Mr Faizi. That is not a matter which we can take into account on appeal, it not having been before the Chairman.In these circumstances, we are quite satisfied that there are no grounds for interfering with the Chairman's exercise of discretion in refusing the application for a postponement of the substantive hearing of these cases. Accordingly, we must dismiss the appeal.However, an interlocutory order is not final. It will be open to the appellants to renew their application on the first day of the hearing if so advised. Meanwhile, the parties should prepare for the hearing on 29th April 1997.