Macey v. Velocity 128 Ltd [1997] UKEAT 568_94_2305

EAT
Macey v. Velocity 128 Ltd
[1997] UKEAT 568_94_2305 · 1997-05-23

JUDGE PETER CLARK : This appeal comes before me for directions in the following circumstances.

The appellant commenced employment with a company, Sleepline Holdings Ltd t/a Sleepline Beds in 1977. He was the Finance Director of the holding company. In 1991, following a management buy out, the respondent company was formed.On 11th October 1993 he was suspended pending disciplinary proceedings and on 29th October 1993 he was dismissed on grounds of misconduct relating to his financial management rather than his honesty.On 13th January 1994 he attended an internal appeal against his dismissal, but no result of that appeal was ever communicated to him before 4th February 1994 when an administrative receiver was appointed by the Company's mortgagees.Shortly before that date, on 25th January 1994, he presented an Originating Application to the Industrial Tribunal claiming that he had been unfairly dismissed. No Notice of Appearance was entered by the Company, and in due course both the receiver and the Secretary of State indicated that they did not wish to take any part in the Industrial Tribunal proceedings. I should add that similar indications have been given in relation to this appeal.His complaint came on for hearing before a Chairman of Industrial Tribunals, Mr C F Sara, sitting alone at Bristol on 20th May 1994. The appellant appeared in person. He was not opposed.In the absence of representation by or on behalf of the respondent the Chairman found that the dismissal was unfair but went on to hold that the appellant had contributed to his dismissal to the extent that he should receive neither a compensatory or basic award. Extended reasons for that decision were promulgated on 3rd June 1994.Having failed to recover any compensation, the appellant instructed solicitors, Messrs Wood Awdry Wansboroughs, who promptly lodged a Notice of Appeal on 10th June 1994. The partner dealing with the case throughout has been Mr Christopher Bromfield.The Notice contained no grounds of appeal. Paragraph 6 of the Notice reads:

"The grounds of appeal will follow on the grant of Legal Aid."

It seems to me looking at paragraph 2.6 of the Employment Appeal Tribunal Practice Direction which came into force for all appeals on 15th April 1996 that it is not open to a party to reserve a right to amend, alter or add to his Notice of Appeal. Amendment can only be made pursuant to an Order for leave to amend on an interlocutory application, and the Practice Direction adds that that application should be made as soon as the need for amendment is known.In a covering letter Mr Bromfield wrote:
"Mr Macey is eligible for Legal Aid and will be making an application for Legal Aid with which to pursue his appeal. We would be grateful therefore if directions could be made extending the time for service of the grounds for appeal.

We look forward to hearing from you."

By letter dated 28th June 1994 the Registrar directed that the appeal would be stayed pending the outcome of the appellant's Legal Aid application.On 27th April 1995 the Registrar wrote asking what was the current position. There was no reply. That was followed by a letter dated 18th August 1995, giving the appellant seven days in which to indicate whether the appeal was continuing, failing which no further action would be taken on the Notice of Appeal.Mr Bromfield replied on 29th August 1995, apologising for his failure to respond to the Registrar's earlier letter of 27th April, and indicating that the appeal would proceed, subject to obtaining a favourable opinion from Counsel.I see from an affidavit sworn by Mr Bromfield in these proceedings on 13th May 1997 that Counsel, Mr Roy Lewis, was instructed. He advised by telephone on 23rd October 1995, Mr Bromfield reported back to his client, who instructed him to proceed. On 1st December 1995 Counsel returned the papers to the solicitors including a draft Amended Notice setting out grounds of appeal.The amended Notice raises two separate grounds of appeal. The first is that the Chairman took into account an irrelevant factor, namely that public money was involved in the claim (any basic award to a maximum of £3,280 would be recoverable out of the National Insurance Fund under what was then s.122 of the Employment Protection (Consolidation) Act 1978 see now Part XII of the Employment Rights Act 1996 ) in deciding the question of contribution; secondly, it is said that a material finding contained in the Chairman's reasons as to the use by the appellant of inaccurate stock figures was not raised during the hearing, so that the appellant had no opportunity to deal with it. The Chairman's Notes of Evidence relating to this matter are sought.By an oversight for which no adequate explanation can be given, although apologies are genuinely made and accepted by me, Mr Bromfield omitted to lodge the Amended Notice of Appeal until 27th January 1997. He very frankly and fairly takes full responsibility for that oversight. I should add that during that period no further enquiry was made by the Registrar as to the progress of the appeal.Upon receipt of the Amended Notice the Registrar wrote on 30th January 1997 in these terms:
"I am writing in reply to your letter of 27 January 1997.
I have considered the documents in the above appeal and regard the delay in this matter as quite unacceptable.I am minded to strike it out unless within 14 days you apply for an oral hearing to determine whether the appeal should be allowed to proceed."On 12th February Mr Bromfield asked for an oral hearing, and by letter of the same date the Registrar directed that the appeal be set down for an oral hearing to determine whether the appeal should be allowed to proceed.The Bristol Industrial Tribunal was asked for the pleadings and record of the hearing before the Chairman. By letter dated 20th February 1997 the Regional Secretary indicated that the file had been destroyed.It is against that background that the matter comes before me today.It seems to me that the critical question is whether I should, in the exercise of my discretion, grant leave to amend the Notice of Appeal. If I allow the amendment, the matter may proceed to a hearing before the full appeal tribunal; if not, then there are no grounds of appeal and I shall direct that no further action shall be taken on the appeal pursuant to Rule 3(6) of the Employment Appeal Tribunal Rules 1993; alternatively that the appeal be struck out for want of prosecution under my inherent powers.It is accepted by Mr Lewis, who appears on behalf of the appellant today, that there has been inordinate and inexcusable delay in this case, particularly between receipt of the draft amended Notice of Appeal on 1st December 1995 and its being lodged on 27th January 1997. In my view that delay comes on top of earlier delays since June 1994 whilst the Legal Aid position was being resolved. The Registrar described the latest delay as unacceptable. I agree.However, Mr Lewis submits, by analogy with the High Court practice of striking out claims for want of prosecution, that here there is no prejudice caused by the delay. He relies upon the test for striking out which is set out in the speech of Lord Diplock in Birkett v James [1978] AC 297 at 318F-G. Neither the receiver nor the Secretary of State wish to take part in the appeal proceedings; this is a case which will be decided on the papers and on submissions, there being no live evidence. He further submits that if the appeal succeeds there will be no need to remit the case for rehearing by a fresh Industrial Tribunal.I accept that there is no prejudice to any other party by allowing this appeal to proceed. Such prejudice as may arise is more likely to be the appellant I have earlier observed that there is a request for Chairman's Notes in relation to the ground of appeal set out at paragraph 8 of the proposed amended Notice. I know not whether the Chairman's Notes are still in existence three years on. If not, then it will be the appellant who suffers from the absence of such Notes.I have reminded myself of the principles upon which the discretion to grant or refuse leave to amend is exercised in the High Court. The object is to decide the rights of the parties, not to punish them for their mistakes. Generally, leave should be granted provided that to do so will not result in prejudice or injustice to another party which cannot be compensated for in costs.Here, there is no prejudice to any other party. The Receiver and Secretary of State have indicated that they do not propose taking part in the appeal. This is not a witness action in which the recollection of witnesses has been dimmed by the passage of time.I also take into account the fact that the appellant is not strictly in breach of any order or direction of the appeal tribunal. The Notice of Appeal, in its original form, was improperly constituted, but a general extension of time was given to lodge grounds of appeal. The delay in doing so was quite unacceptable, but my function is not to punish the appellant's solicitors for that state of affairs.Finally, I do not regard it as part of the exercise which I am asked to undertake to judge the merits of the appeal. That will be a matter for the full appeal tribunal.In these circumstances I have reached the conclusion that on the particular facts of this case I should exercise my discretion in favour of allowing the amendment, and permit the appeal to proceed to a preliminary hearing before the full tribunal.I shall further direct that a copy of the amended Notice of Appeal be sent to the Chairman, Mr Sara, who should be asked to produce his Notes of Evidence, if they are available, limited to the issue raised in paragraph 8 of the Notice.Following the Chairman's response to that request the matter will be listed for preliminary hearing at the first available opportunity.