Active Media Services (UK) Ltd v Sargent [1998] UKEAT 14_98_1301

EAT

Active Media Services (UK) Ltd v Sargent

[1998] UKEAT 14_98_1301 · 1998-01-13

MR JUSTICE KIRKWOOD : This is an appeal dated 6th January 1998 by Active Media Services (UK) Ltd, who act by solicitors, against the decision of the Chairman of Industrial Tribunals refusing an application to adjourn a hearing fixed for 15th January 1998.

The appeal document takes the form of a Notice of Appeal on a pro forma completed in manuscript by the appellants' solicitor to which is attached correspondence upon which the appellants rely by reference.

This Appeal Tribunal is given no information by the appellants as to the nature of the proceeding pending before the Industrial Tribunal, nor as to its history or complexity. This Appeal Tribunal has only the Notice of Appeal with attached correspondence; a letter to the Registrar at the Employment Appeal Tribunal; and a notice signed by the appellants' solicitor indicating that the appellants do not intend to be present at this hearing. The respondent has filed an answer which informs the tribunal of nothing further, and has not appeared today.

It appears that the Notice of Hearing for 15th January 1998 was issued on 16th December 1997. Upon receipt of it the appellant's solicitor wrote to the Industrial Tribunal saying:

"We are in receipt of your Notice of Hearing dated 16 December 1997, advising us of the date of the Tribunal hearing set for 15 January 1998. You will note our enclosed response to Charles Russell & Co of today."

I interpose to say that Charles Russell & Co are the respondents' solicitors. The enclosure promised with this letter of 17th December has not been supplied to the Appeal Tribunal by the appellants' solicitors so we do not have it. The letter continues:

"Plainly, there are discovery issues still to be dealt with initially by way of correspondence, and if necessary by application to the Chairman.

Furthermore, one of our key witnesses, Mr Rick Fuest, is a US citizen and is based in the US. He is unable to attend at such short notice and I suggest that you vacate the hearing and that we advise you of the dates that Mr Fuest can attend along with our other witnesses. Failure to do so would render our client prejudiced at the forthcoming hearing, set without any notification to us."

That is the first letter, and it does seem to us to be a matter worthy of note that it was written some four weeks before the date fixed for the hearing, and no explanation whatever is given why the witness referred to was unable to make the journey from the United States of America to England in the four weeks available up to 15th January 1998.

The response to that letter from the Industrial Tribunal was as follows:

"1. I refer to your rent request for a postponement of the hearing in this case.

2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

3. The Chairman refuses your request for the following reason:

Mere inconvenience to witnesses is not a sufficient reason to grant a postponement."

That letter prompted a further letter from the appellants' solicitor dated 24th December 1997 in which it was noted that the writer of the letter was to be absent from his office until 5th January 1998, and saying in effect that the solicitor writing the letter could not understand the necessity of a hearing at such a premature date when the client prejudiced by it. The letter asked for the tribunal to review its decision.

On 6th January 1998 the solicitor wrote a further letter having spoken to the Industrial Tribunal and learned that the decision not to allow a postponement stood. That letter does not seem to us to take the matter forward, at least in the sense of informing us in any way of more detail of the case, or indeed, of the difficulty the American witness might face in travelling for the hearing date.

That is all the information we have save for a letter to the Registrar at the Employment Appeal Tribunal dated 8th January 1998 which came after the Notice of Appeal and enclosed the document indicating that the appellants' solicitor would not attend.

In that letter of 8th January 1998 the appellants' solicitors says:

"... we are of the opinion that we have supplied the Tribunal with all the information relevant to our Appeal to be considered at the Hearing. The issues are clearly set out in the correspondence attached to our Notice of Hearing. On this basis, we do not feel any useful purpose would be served by attending at the Hearing on Tuesday 13 January .

. ..

We therefore respectfully request that the Appeal Tribunal makes its decision upon consideration of the documentation we have already supplied, which we consider more than adequately sets out the reasons for our application for the Industrial Tribunal decision to be reviewed."

In writing that the solicitor for the appellants is under a misapprehension.

There is nothing in the material we have beyond that to which I have referred with informs us about the case. The decision as to adjournment or not, lies within the discretion of the Chairman of the tribunal who considered the matter. We find nothing in the material we have, which we recognise to be limited, to indicate that that discretion has been exercised in any wrong and impugnable way.

We have considered whether by means of any postponement we could have obtained more information, but having regard to the fact that the hearing is fixed to begin in no more than 48 hours time, we consider that nothing can be achieved in that regard. We reach the conclusion that on the information we have, this appeal must be dismissed.