Dhami v Employment Service [1997] UKEAT 573_96_2101

EAT
Dhami v Employment Service
[1997] UKEAT 573_96_2101 · 1997-01-21
MR JUSTICE MORISON (PRESIDENT): This is an appeal against an Industrial Tribunal decision which was contained in writing sent to the parties on 22nd April 1996. By that decision the tribunal ordered that the complainant's application be struck out and a consequential order for costs was made in favour of the respondents. The applicant is Mr K S Dhami, and the respondent is the Employment Service.Mr Dhami presented an Originating Application to the Industrial Tribunal on 14th November 1995. In that IT1 he indicated that his representative was Sarah Goodman of Messrs Robin Thompson & Partners, a well-known firm of solicitors. In box 1, that is where the applicant is invited to identify the type of complaint he wants the tribunal to decide, Mr Dhami said:
"Whether the employer has racially discriminated against the complainant during and following an internal staff investigation."
and in box 12, where the applicant is invited to give brief details about his complaint, the following words appeared:"Inequitable treatment by E.S. [ Employment Service ] West Midlands senior management during and following an internal staff investigation, amounting to racial discrimination. Please link with case reference ..." [ A reference was given ]That is a reference to a case of alleged racial discrimination on the grounds of non-promotion.It is clear that that particularisation of the complaint was wholly insufficient to enable justice to be done between the parties. The matter would require proper particularisation before the employers could properly understand the exact nature of the complaint of racial discrimination that was being made against them. Accordingly, a request for particulars of box 12 was sought on behalf of the respondents.That request was purportedly complied with on 8th December 1995. The reply of 8th December 1995 seemed to have been made in compliance with the Order. However, although sent to the respondents, it was not formally sent to the Industrial Tribunal as it should have been.Reasonably, we think, the respondents took the view that the particulars with which they had been provided were still inadequate. The letter of 8th December, purportedly containing the particulars, listed nine separate matters of alleged inequitable treatment. Number 2 said simply "Encouraging complaints" , number 9 said "Soliciting complaints" . By letter dated 6th February 1996 to the Industrial Tribunal, the respondents requested an order for the delivery of those additional further and better particulars which had still not been provided, they having first of all sought those particular unsuccessfully from Messrs Robin Thompson & Partners. In pursuance to the request for an Order, the tribunal made such an Order on 13th February 1996 for compliance by 26th February 1996. There was no compliance with that Order. On 27th February 1996, that is the day following the expiry of the time limit, the respondents wrote asking that the Originating Application should be struck out. Apparently on the same date, Miss Goodman of Messrs Robin Thompson & Partners wrote to the respondents' solicitors saying:
"I am in receipt of the notice of hearing in this case and also of the Tribunal's Order for Further and Better Particulars. I would like this to be considered by Counsel. A conference has been arranged for 21 March 1996. I write to ask if you would be willing to agree that the date of compliance with the order be extended to 7 days after that date."
It is to be noted, first, that that letter was not sent or copied to the Industrial Tribunal; and secondly, that it appears not to have been dispatched until 1st March 1996. It was received by the respondents' solicitors, who wrote to the tribunal repeating their request for the application to be struck out and enclosing with their letter, quite properly, a copy of Miss Goodman's letter of 27th February 1996.In due course the tribunal copied the respondents' letter to Miss Goodman on 8th March 1996, and invited her comments by return of post. She replied on 11th March 1996. The Industrial Tribunal directed that the respondents' application that the matter should be struck out be listed for hearing. By a facsimile dated 27th March 1996, Miss Goodman (and I quote the tribunal's decision) "Finally produced the particulars which had been ordered 6 weeks earlier." The tribunal considered that those latest particulars still did not comply with the Order. In two particular respects, namely, Item 2 'encouraged complaints' and item 9 'solicited complaints'. In addition, the employers also contended that paragraph 4 of the request had not been fully complied with, although the tribunal does make any adjudication on that issue.At paragraphs 3 and 4 the tribunal Chairman gave detailed reasons for his decision in this case:
"3. It is plain beyond argument that the order dated 13 February has not been complied with even yet. I have discretion as to whether the consequence of that failure should be that the Originating Application be struck out. I would not normally exercise my discretion in favour of striking out merely because of incompetent case management by solicitors representing a party. I would not do so normally even where, as in this case, the case management appears to be so incompetent as to seriously raise the question of whether the Tribunal's order was being treated with contempt. I find it utterly astonishing, having regard to the fact that this was the second order for particular issued against the applicant, and that penal notices were attached to both, that Miss Goodman should even begin to feel that alleged typing difficulties and workload would be an acceptable excuse for non compliance, or that she feel it unnecessary to inform the Tribunal during the currency of the Order that she was experiencing such difficulties. I find it even more astonishing that she should arrange a conference with Counsel not previously involved in the matter to take place more than three weeks after the date for compliance with the order had expired. There are now more than 250 Counsel who are members of the Employment Law Bar Association and I have been given no explanation, let alone an adequate explanation, of why given the self evident urgency of the matter, it was felt appropriate for Mr Oudkerk to be instructed knowing that if he was, the Order could not be complied with.
4. However, as I have said, I would not normally allow such conduct, reprehensible though it unquestionably was, to result in the striking out of an Originating Application if that would cause a serious injustice to the applicant. What has persuaded me however to exercise my discretion to strike out the application is that I accept in it's entirety Miss Coult's diagnosis of the problems which appears to beset the preparation of the applicant's case, namely that it is being contrived on the hoof. From remarks made by Miss Goodman it is clear that the complaint is no more than that something which the applicant does not like has happened to him and he has persuaded himself it has happened because of his race. For example, it would appear that there is not a shred of evidence to support his allegation that the respondents solicited complaints. All that the applicant can say is that complaints were made and they were made after a member of management visited the Yardley premises. He is not in a position to call any witnesses to say that a complaint was solicited from them or an attempt to solicitor a complaint was made. The applicant's case has developed to it's present, still very inadequate state, only because of the documentation provided by the respondents from which they applicant has attempted to tease out some substance to back up the vague generalisation pleaded at paragraph 12 of the Originating Application. It is plain that he is still unable to say precisely what the Respondents have done that has caused him to suspect them of racial discrimination. Particulars have not been provided because the applicant can give none. He will therefore suffer no injustice if I strike him out where as if they are required to continue to defend these meritless proceedings the Respondents unquestionably will."In effect in paragraph 3, he concluded that there was a real question as to whether the behaviour of the applicant's solicitor was so incompetent as seriously to raise the question of whether the tribunal's Order was being treated with contempt. It was his view that she was acting inappropriately by not communicating with the Industrial Tribunal before the expiry of the time limit for the compliance with the Order; she did not feel it necessary to inform them that she was experiencing difficulties; and he regarded the excuse for delay, namely, that they were seeing Counsel much later in March, as unsatisfactory. As he pointed out, there are more than 250 Counsel who are members of the Employment Law Bar Association and he continued "I have been given no explanation, let alone an adequate explanation, of why given the self evident urgency of the matter, it was felt appropriate for Mr Oudkerk to be instructed knowing that if he was, the Order could not be complied with."In paragraph 4 of the decision, it appears that, on the basis of the conduct of the applicant's solicitors the Chairman was not prepared to strike out the Originating Application if by doing so it would cause a serious injustice to the applicant. It seems to us that thereafter that the Industrial Tribunal Chairman misdirected himself in law in the exercise of his discretion, since he appeared to consider the merits of the claim as such. It seems to us inappropriate that on an interlocutory application of this sort, a tribunal should seek to form any view as to merits of the case that is being brought before it, because the Chairman or tribunal will not have the benefit of any evidence before such a view is formed. There is a procedure within the tribunal rules which enables a preliminary judgment to be formed, but that is a special procedure entitling the Industrial Tribunal to give a costs warning and is a matter of express rule. When dealing with a request to strike out for failure to comply with a pleading, it seems to us that the tribunal ought to consider the consequences of striking out or not striking out, but without reference to the merits of the substantive application itself as to which he can form no complete view.Rule 4(7) expressly empowers an Industrial Tribunal Chairman when faced with an application to strike out or when considering whether to strike out an Originating Application, to consider whether it should be struck in full or merely in part. There is no reference to the power to strike out a part of a complaint, and it does not appear to us that the Industrial Tribunal Chairman has directed his attention to that issue. He is not to be criticised, as it seems to us, for having failed to do so, because it does not appear to us, having heard both parties today, that Miss Goodman made the submission to the Industrial Tribunal Chairman that if there had been a failure to comply with the Order by the date of the hearing before him, it was a failure in relation only to two matters or possibly three, and the tribunal Chairman should consider exercising his discretion to strike out merely part of the application. As it was, the Industrial Tribunal Chairman simply decided that because the proceedings were meritless, it was appropriate to strike out the whole of the claim.As we say, we regard the Chairman as having misdirected himself in law in considering the substantive merits of the case, and as having failed to address his mind to the question as to whether justice could not be done in this case by simply striking out part of the claim which was not properly particularised. We are not persuaded that the only error of law which the Chairman made was to place in front of the employers a higher hurdle than was requisite, as was submitted by Mr Gregory in his interesting submission. He invited us to the view that paragraph 3 of the decision should have led the Industrial Tribunal Chairman to have concluded that the case should be struck out; although the additional requirement of looking at the merits was not something to which he should have had regard, it could not be said to have impugned the exercise of his discretion since it was simply an unnecessary additional hurdle.We cannot accept that argument because it seems to us that on a proper reading of paragraph 4, the decision that he made in this case was entirely contingent in the end upon his view of the merits of the case. To that extent, we think that he was wrong.Accordingly, we are left with the position that there has been an error of law in the exercise of a discretion, and it seems to us that the correct course for us now to follow, in the exercise of our powers, is to make such Order as the Industrial Tribunal itself could have made had it considered the matter properly.In our judgment, we quite understand the anger and irritation of the tribunal over the way it had been treated by the employee's representative. It is to be expected from solicitors that they will treat the tribunal Orders with the respect that they deserve, and if I had felt that there was any kind of deliberate contempt in this case, I would unquestionably have referred Miss Goodman's conduct to the Law Society. As it is, it seems to us that, albeit at a very stage, the Order made by the Industrial Tribunal of the further and better particulars was substantially complied with, and that justice could properly be done between the parties if part of the Originating Application only were to be struck out. We consider that it was heavy handed to strike out the whole of the application, albeit that the particulars had been provided for a substantial part of it.Accordingly, we believe that we should substitute for the Order made by the Industrial Tribunal, an Order that item 2 and 9 should be struck out from the particulars given by the applicant in this case, in other words, that it should not be open to him to allege or adduce evidence in support of a contention that the respondents encouraged complaints or solicited complaints from staff.As to paragraph 4, that is "Leaving the Deputy Manager to manage the office despite her lack of support for the Applicant's policies agreed with higher management." whilst we can understand that that is somewhat general, we have looked with care at the rest of the particulars of the complaint as it has been made and it seems to us that the respondents will quite properly and fairly be able to deal with those contentions. It is clear what, in essence, the complainant is saying. Needless to say whether his complaint has any merit in it or not, is not something on which we would express an opinion.Accordingly, we allow the appeal to that extent, but make it plain that we strongly disapprove of the conduct of the applicant's legal adviser as categorised by the Industrial Tribunal Chairman. We should add simply that, it seems to us, on what we have been told that Mr Dhami himself was in no way to blame for what has occurred in this case. Indeed he told us that he was unaware that the application to strike out his Originating Application had been made and was to be heard and determined. If that is right, it seems to us a further failure on the part of the solicitors in this case, who have not appeared before us today.