Silicon Imaging Ltd v Pearce [1998] UKEAT 1234_97_1703

EAT
Silicon Imaging Ltd v Pearce
[1998] UKEAT 1234_97_1703 · 1998-03-17
MR JUSTICE MORISON (PRESIDENT) : At a Industrial Tribunal hearing held on 28th April 1997, an Industrial Tribunal Chairman sitting alone, awarded the applicant, Mr M Pearce, the sum of £5,459.34 against his former employers, Silicon Imaging Ltd, the respondent to his application. The respondents had not entered a Notice of Appearance before the Industrial Tribunal and did not appear on 28th April. The decision in summary reason form was sent to the parties on 22nd May 1997 and that is the date from which time for appealing to this court runs.We received on 4th July 1997 a Notice of Appeal and it is to be observed that that Notice of Appeal was lodged with us just within time. It was pointed out that the provisions of our Practice Direction would be put into operation and it was also pointed out that the decision of the Industrial Tribunal was not in extended reason form, and that we should require extended reasons before the appeal was considered. Not surprisingly, given the circumstances, the Industrial Tribunal refused to provide extended reasons on the grounds firstly, that the application was made far too late; and secondly, by reason of their non-appearance at the Industrial Tribunal.Paragraph 16 of our Practice Direction requires if an appellant has not entered a Notice of Appearance he must comply with the requirements set out in that paragraph. Paragraph 16(2) reads:(2) The Appellant will not be permitted to pursue the appeal unless the EAT is satisfied at the preliminary hearing that:

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

In this case, Miss Richman on behalf of the appellants, urges us to accept that the affidavit material before us should satisfy us that there is such a good excuse.The affidavit material is an affidavit sworn on 18th December 1997 by a Mr Andrew King, who is the Finance Director of Silicon Imaging Ltd, and a supplemental affidavit of his, which was sworn on 17th March 1998, that is this morning.In his first affidavit the nature of the excuse which is advanced for the non-entry of a Notice of Appearance is that the Company was confused because the applicant had commenced proceedings in the County Court and they had responded to those proceedings by entering a defence and thereafter received an IT1. It is asserted in the affidavit that the Company did not trouble to read the documents from the Industrial Tribunal, but had assumed that they were all part and parcel of the one set of proceedings which they were dealing with in the County Court, and that when they received a Notice of Transfer of the proceedings from one County Court to another, that in some way confirmed their belief. Paragraph 3 of the first affidavit says:
"I subsequently received the decision of the Tribunal a considerable period of time later and it was only at that stage that I realised that a mistake had been made."
In the supplemental affidavit the deponent says:
"I recall that we were notified by the Court of a date for a hearing of the case relating to Mr Pearce. Literally one or two days beforehand I had a telephone call out of the blue from Mr Pearce confirming that he was not going ahead with it and that he was dropping the proceedings."
It follows that when Silicon Imaging Ltd received the decision of the Industrial Tribunal which had been sent to them on 22nd May 1997, it must have come as a bombshell; not only because they did not understand that the Industrial Tribunal proceedings were separate and distinct from the County Court proceedings; but also, because on the basis of the supplemental affidavit, they must have thought that they were going to hear nothing further about the matter.But it is apparent, and this is not explained in the affidavit, that nothing was done for some period of time. We find that significant. It seems to us that if the Company had genuinely believed that there was only one set of proceedings in existence, and that it was a bolt out of the blue when they received the Industrial Tribunal decision, they would have immediately contacted the Industrial Tribunal to ask for an explanation as to what on earth was going on; and to ask for the opportunity to correct their error. There is no evidence that they communicated with the Industrial Tribunal at any stage before they entered the Notice of Appeal in this case. That seems to us to be quite inconsistent with any suggestion that the Company was somehow confused as to what was going on. Apart from anything else, on 12th February they had received notice from the Industrial Tribunal indicating that the hearing was going to be listed as "appearance not entered". They must have been told of the date of the hearing, they would have been given the information as to where the hearing was to take place, and it seems to us, incredible, frankly, that they could have confused the place of hearing of an Industrial Tribunal with the place where the County Court sits. They are not at the same place. They are separate and distinct.This is the Finance Director who has sworn the affidavit. In our judgment, he has completely failed to satisfy us that there was any good reason for their failure to enter a Notice of Appearance.Accordingly, this appeal must be dismissed and we do not need to consider the second leg of the Practice Direction which requires an indication that there is a proper defence to the claim. As to that, we make no finding as it does not arise in the light of our decision on the first part.Accordingly, this is an appeal which will be dismissed.