Dangerous Goods Management UK Ltd v Burnett [1997] UKEAT 678_97_0610

EAT
Dangerous Goods Management UK Ltd v Burnett
[1997] UKEAT 678_97_0610 · 1997-10-06

JUDGE D PUGSLEY :

In this case the Appellants seek leave to proceed to a full Tribunal. The full facts of the case are set out in a helpful Decision of the Industrial Tribunal promulgated on 10 March 1997. In that the Tribunal note at paragraph 3 that the Respondents had failed to enter an Appearance and were therefore not entitled to take part in these proceedings.A Notice of Appeal was filed by the Respondents on 4 April. It is significant that the Appellants' appeal at that stage was on this basis:
"Due to unforeseen circumstances the Managing Director is out of the country at the time of this hearing and was unable to attend. We deny that an unlawful deduction was made and request that a date be set for a 2nd hearing."
They went on to say:
"Martin Burt, Managing Director, is the key witness of the Appellant and is respectively required to present evidence."
There was a letter attached to that in which various allegations were made against the Applicant.In accordance with the Practice Direction the Appellants were advised by the Registrar of the necessity to file an affidavit. The affidavit is extremely brief. It is sworn before a Solicitor. It is set out in the documents at page 13. It reads simply this:
"I, Martin Burt make oath and say that I have been unable to respond to your correspondence and therefore could not attend the scheduled hearing to defend our position. I have been out of the country for more than 8 weeks from latter part of December through March of 97.

In the circumstances I request that a new date be set for the hearing."

Mr Batson has come along and told us that Mr Burt is frequently out of the country and seems to be out of the country today. This is a Company purporting to carry out serious work. It seems there is another Company in the background called Murphy. We note with interest that the affidavit sworn by Mr Burnett notes that there was at all times communication with ACAS. We just do not accept in this case that the Appellants have given us a satisfactory account as to why they failed to put their case in a Notice of Appearance.The original Notice of Appeal is on the basis that the Managing Director is out of the country at the time of the hearing. That, in the affidavit, has varied by the addition of the assertion that the Respondent was "unable to respond to your correspondence". We simply do not accept that there has been any credible account to account for the delay that has occurred in this case and, with great respect, if you are going to run a business you have a registered office and you delegate staff to deal with these matters. The Practice Direction, paragraph 16 says this:
"(2) The Appellant will not be permitted to pursue the appeal unless the Employment Appeal Tribunal is satisfied at the preliminary hearing that:

(1) there is a good excuse for failing to enter a Notice of Appearance."

We have heard no excuse that is acceptable. Before us Mr Batson has told us that Mr Burt is often out of the country for three out of four weeks. This is a Company. In the circumstances of this case, in our view, this case fails in limine to establish the first of the criteria under the Practice Direction. The appeal is dismissed.