Video Visuals Ltd v Pointing & Anor [1998] UKEAT 1303_98_0311

EAT
Video Visuals Ltd v Pointing & Anor
[1998] UKEAT 1303_98_0311 · 1998-11-03
MR JUSTICE MORISON (PRESIDENT) : This is an urgent interlocutory appeal. Video Visuals Ltd appeal against a refusal by a Chairman of the Industrial Tribunals to refuse their request for a postponement of the case, which is due to be heard tomorrow and 5 November.The Applicants made complaints against their former employers, Video Visuals Ltd, which were presented to the Industrial Tribunal in January 1998.The case was listed for a date, which was specifically agreed by Counsel then representing Video Visuals, at a directions hearing on 9 July 1998. The parties prepared for the hearing and on about 21 October 1998 Video Visuals had a meeting with their then solicitors, who informed then that they would not be offering them representation in the matter. So on 21 October 1998 the Company wrote to the Industrial Tribunals with that information, requesting an adjournment.The response of the Tribunal was short and succinct:
"I refer to your recent request for postponement.
The Chairman of the Tribunals has refused your request as there is ample time to instruct new Solicitors."And that response was dated 23 October 1998.A Notice of Appeal was filed against that decision and received by the Employment Appeal Tribunal on 2 November. Thus there is a period of unexplained delay between 23 October or the 24th and the lodging of the Notice of Appeal here.The grounds of appeal are stated to be:
"At the time of making this appeal Video Visuals Ltd has been unable to find a new firm of solicitors who are able to represent the company on the 4th and 5th of November 1998.
If the original date (18th and 19th June 1998) for the hearing had been adhered to by the Applicants, Video Visuals Ltd were in a position to be represented by Davenport Lyons.The Applicants requested a postponement of the hearing on the grounds that Mrs Pointing would be on holiday.The company is worried that it will be at a serious disadvantage if not represented at the hearing."The parties were informed of this hearing and have indicated that they wished the EAT to determine the appeal without making oral representations.The Appellants have filed a letter dated 3 November 1998, indicating that:
"Video Visuals have now found a firm of solicitors who are prepared to represent them in this matter, however, they have indicated that they would need between four to six weeks to review the files, instruct counsel and prepare witness statements.
Whereas Video Visuals is very keen to see the matter resolved as soon as possible, we feel that the company would be at a considerable disadvantage if the case proceeded without adequate legal representation.

The solicitors we have contacted are Kidd Rapinet of Aylesbury... ."

The position of the Respondent to this appeal, the Applicants to the Industrial Tribunal, is to oppose this appeal. They say that a considerable amount of work has been done to prepare these proceedings for the hearing. Four witnesses have been contacted, who are available to give evidence and Counsel has been briefed. If the hearing were adjourned they would be prejudiced in that they would not be able to get a two-day hearing for a considerable period of time. When the writer last spoke to the London North Employment Tribunal, she was advised that the earliest two-day hearing that was available was in January 1999 and they point out that the action was commenced on 12 January 1998. They say that considerable costs would be incurred if the hearing was postponed and they say that they believe that Video Visuals effectively are playing for time and may possibly be winding-down its business as it has lost one of its major contracts. Accordingly, adjourning the hearing will give the Respondents an opportunity to go into liquidation and thus defeat the claims of the Applicants. They point out that no prior indication had been given of any difficulty that Video Visuals were having with their solicitors and it is unclear why their former solicitors are not willing to continue to act.The position is quite simple. Applications for an adjournment involve the exercise by the Industrial Tribunal Chairman of a discretion. That discretion must be exercised judicially. Provided that it has been so exercised, the Employment Appeal Tribunal will not, and cannot, interfere with a decision whether to grant an adjournment or not.The question therefore is whether it can be said that the Industrial Tribunal Chairman's decision was either so obviously wrong that it should be interfered with, or has involved some kind of misdirection of law.I am unable, on this appeal, to arrive at such a conclusion. I agree with the Tribunal's comment that, at the time when they were in difficulties with their then solicitors, the Appellants had ample opportunity to instruct new solicitors to take over the case and represent their interests. I have grave difficulty in understanding how it could be that new solicitors would require four to six weeks to prepare this case for a hearing.It seems to me that that is a gross exaggeration of the position. If Video Visuals had wanted to obtain proper representation in this case, I have no doubt that they would have been able to have arranged it in the time which was available to them.Accordingly, not only is this a case where I do not think that it can be said that the Chairman erred in law, this is a case where I am satisfied that the discretion was correctly exercised.Of course, applications for an adjournment may be made at any time and if such an application is made to the Tribunal tomorrow morning, no doubt it will be considered on its merits. But it is sufficient for me to say that the previous decision taken by the learned Chairman was obviously right and we cannot interfere with it. The case must go ahead, therefore, tomorrow.