Prison Service v Thompson [1998] UKEAT 194_98_1302

EAT
Prison Service v Thompson
[1998] UKEAT 194_98_1302 · 1998-02-13
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against a decision of an Industrial Tribunal which refused to extend time to the Prison Service to present their Notice of Appearance. That decision was taken by a Chairman sitting alone, Mr Morris, at a tribunal held at Leeds on 17th December 1997. In addition to refusing leave to enter a Notice of Appearance out of time, the Prison Service were ordered to pay the applicant's costs.The tribunal did not, as we understand it, hear evidence. The Prison Service were represented by the Prison Governor who acted both as advocate, and, in one sense, informal witness. He was asked to explain why it was that the answer had not been presented within time and from his position as an advocate he gave explanations to the Industrial Tribunal.It was not suggested in the submissions which were made on behalf of the applicant that the Governor had been disingenuous in what he had said to the tribunal. As we understand it the Chairman of the tribunal did not say to him when he gave his explanation that he was not telling the complete truth or that in some way what had been said in his Notice of Appearance was not the complete truth.The application to extend time was necessary because the Notice of Appearance was seven days out of time, there being a 21 day period. The Rules are well-known
"3. ... (3) A notice of appearance which- (a) is presented to the Secretary after the time appointed by this rule for entering appearances, and (b) sets out the reasons why the notice has been presented out of time
shall be deemed to include an application under rule 15 for an extension of the time so appointed on the grounds disclosed by those reasons.(4) Where a chairman grants an application under rule 15 for an extension of the time so appointed (including an application deemed to be made by virtue of paragraph (3)) he shall determine whether, having regard to the grounds of the application, it would have been reasonably practicable for the respondent to present his notice of appearance within the time so appointed. If the chairman determines that it would have been so practicable, the respondent shall be treated as having acted unreasonably for the purposes of rule 12(1) and the chairman shall make an order under that rule if he considers it appropriate."At paragraph 3 h) of their decision the Industrial Tribunal referred to the Prison Governor's 'evidence' and said that he looked at the Notice of Appearance which had been provided to him on 17th November by the Personnel Officer; that he had one or two queries about it; the draft Notice of Appearance remained on his desk and was overlooked by him until 1st December when he then raised his queries with the Personnel Officer; that what purported to be a Notice of Appearance was then submitted together with an explanation, which was not absolutely true, as to why the Notice was late and asking that leave be given to submit the Notice of Appearance out of time.In paragraph 4 the tribunal said this:
"4. At the hearing today Mr Tasker [ the Prison Governor ] has been very frank with the tribunal in stating the facts as set out above. It is clear to the tribunal that, on 17 November at the very latest, a Notice of Appearance could have been filed and that would have been well within the time limit. In passing it is noted that in the document which forms the basis of the Appearance which the Respondent would wish to enter there clearly is an admission in the second part of particulars relating to constructive dismissal which the Respondent then goes on to deny together with other matters. It is clear, having read that document, that if the contents were true then it could have been submitted immediately and certainly clearly by the 17th. The fact that it was left and not entered affects its credibility to some extent."
In paragraph 5 the tribunal Chairman deals with the fact that the Prison Service is a Government Department which ought to be able to get things right.In paragraph 6 they noted that it would have been reasonably practicable for the respondent to have filed a Notice of Appearance in time.In paragraphs 7, 8 and 9 the tribunal purport to deal with the question of prejudice. They say this:
"7. It seems that this is not a case which can simply be met by an order for costs. There is a prejudice to the Applicant here where the Respondent is not some small organisation but a large Government Department. An applicant needs to know at the earliest time, what argument is being arrayed against it and, of course, at the moment that happens then the applicant knows whether or not the State is marshalling all its might against the individual citizen to defend the proceedings who is of comparatively of [ sic ] meagre means. When that happens the individual citizen must take pause for thought.
8. When a Respondent who is an arm of the State fails to abide by the Rules promptly, as it has done in this case largely due to incompetence, the tribunal has to take a view which might appear draconian in other circumstances because the interests of justice require balancing between the rights of the State and the individual citizen, taking into account their comparative power and means available to them.9. It is the tribunal's view, therefore, that on balance there is greater prejudice to the applicant than to the Respondent in granting the Respondent leave to enter Notice of Appearance out of time. Accordingly, the application to enter Notice of Appearance out of time is refused."The Prison Service appealed against that decision, in effect, saying that the tribunal Chairman both misdirected himself and arrived at a conclusion which was wholly perverse.In support of the decision of the Industrial Tribunal, Mr James in a conspicuously able argument, submitted to us that the Industrial Tribunal has carried out the task allocated to it, having regard to the guideline case of Kwik Save Stores Ltd v Swain & Others [1997] ICR 49 . In that case my distinguished predecessor and colleagues gave guidance as to the matters which an Industrial Tribunal should take into account. He made a preliminary observation that failure to comply with the Rules causes inconvenience, results in delay and increases costs; it is also indicative of an unacceptable attitude on the part of the defaulter not only to rights conferred and asserted, but also to the Industrial Tribunal system itself. He indicated, as Counsel submitted, three principal factors which the tribunal will wish to take into account: firstly, the length of the delay and the explanation for it; secondly, the relative prejudice to the parties if the application were granted or refused; and, thirdly, what is called the 'merits' point but which in truth is, I think, an aspect of the question of prejudice or injustice.Mr James submitted to us that the Industrial Tribunal dealt in paragraph 5 with the question of the explanation for the delay and the length of the delay; in paragraphs 7 to 9 with relative prejudice; with the 'merits' point in paragraph 4 of the decision together with certain findings in paragraph 3. He submits to us, accordingly, that as the Industrial Tribunal Chairman has considered each of the relevant factors, it cannot be said that this decision is perverse or that there has been a misdirection. The weight to be given to any one of those factors was entirely a matter for the Industrial Tribunal Chairman and we should not interfere with it.In relation to those arguments it is the decision of this Court that in fact the appeal should be allowed.It seems to us that the Industrial Tribunal in this case was required to do justice between the parties in the determination of the Prison Service's application to extend by a week the time for serving their Notice of Appearance. The discretion to extend time is to be exercised judicially, taking into account all relevant considerations. It is not, we think, necessary to rehearse what those considerations will be, because what is relevant and important in one case, may not be so in another. Obviously the tribunal will take into account the period of the delay and the reason for it and the nature of the complaint and whether there is or appears to be a bona fide defence to it. They will also wish to take into account and weigh the respective injustices to the parties if the application were granted or refused. In approaching their task, the Industrial Tribunal will bear well in mind that whilst the Rules of Procedure and the time limits contained within them are to be observed, their function is to enable both parties to come to a hearing in an orderly and fair manner and to have their day in Court. We are quite satisfied that the Industrial Tribunal's decision in this case not to extend time represents a denial of justice rather than the doing of justice. The tribunal has allowed, we think, the Rules of Procedure to become an impediment to the doing of justice, rather than as an aid to the doing of it.It seems to us that the point is well made by the Master of the Rolls, Sir Thomas Bingham, in Costellow v Somerset County Council [1993] 1 WLR 256 which is cited in the Kwik Save case at page 55E where he said this:
"a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate."
The same applies, as it seems to us, to the position of a defendant against whom serious allegations have been made.Furthermore, it seems to us that the Industrial Tribunal Chairman was wrong to use language in his decision which implied that the Prison Service in general or the Governor in particular, had not been fully honest in the way in which they had dealt with the Notice of Appearance. If such a suggestion was to be made, it should only have been made after the Governor had been invited to give evidence as to what the reasons were for the delay, and the respondent applicant given an opportunity to cross-examine him, and to put to him, if that was thought correct, that the evidence or explanation that he was giving, was either inconsistent with what had been said in the IT3 that had been submitted, or showed some lack of credibility or was not absolutely true. It seems to us undesirable that a tribunal Chairman should make those findings otherwise than in the context of an individual knowing what is being said against him and having an opportunity of dealing with it. It is, we think, significant, that the professional representative of the applicant at that hearing did not, according to the note that we have seen, submit that there had been a lack of frankness in the way in which the Prison Service had dealt with the Notice of Appearance. We are sure that that was a correct attitude for the representative to have taken on the basis of the material which we have seen.Secondly, it seems to us, that the Industrial Tribunal Chairman has simply failed to balance the relative injustices to the parties. Paragraph 9 appears to record the fact that there was a balancing exercise carried on, but no where in the decision has he apparently taken into account the fact that by denying them the opportunity to enter a Notice of Appearance effectively the Prison Service is going to be denied the opportunity of dealing with what is a very serious allegation made against them, namely that of unlawful sex discrimination, and of dealing with a complaint of constructive dismissal. All that they have done in paragraph 7 is to look at the alleged prejudice to the applicant but they have not compared that with the alleged prejudice to the respondent.Furthermore, it seems to us, that paragraph 8 of the decision of the Industrial Tribunal suggests that the learned Chairman has taken the view that because the Prison Service was an organ of the State, it should be punished for doing what it had done, namely for failing to comply with the tribunal Rules of Procedure. Punishment has no part to play in this exercise of discretion.Furthermore, it seems to us that the alleged prejudice to the applicant is overstated by the learned Chairman to the point of amounting to perversity. The Notice of Appearance was filed one week late. It is suggested that as a result of the document only becoming known to the applicant on about 17th December, she has lost valuable preparation time and may have been induced or led to believe that somehow or another her complaint was not going to be defended. It seems to us that if the applicant was to rely on some kind of change of position or specific prejudice arising out of a late Notice of Appearance, then evidence would have been required in support of that prejudice. It seems to us fanciful to suggest on the facts of this case that the applicant could have suffered any prejudice, bearing in mind that she did not know what the hearing date was going to be and no doubt could and would have said that as a result of the late Notice of Appearance a hearing date should be chosen which would give her ample opportunity to prepare herself for a heavily contested piece of litigation.It seems to us in theses circumstances that there have been misdirections made by the learned Chairman, and that standing back and looking at the decision overall, one can readily come to the conclusion that an injustice would be done by refusing to grant an extension of time, as we think the Chairman ought to have readily appreciated on the facts of this case.That said, what we think he should have done was to have granted an extension of time in this case, but ordered the Prison Service to pay the costs thrown away as a result of that application. We think that it was entirely right that the Prison Service should be ordered to pay those costs, and in that way, such prejudice as had been sustained would have been fully compensated for. Applying the dictum of the Master of the Rolls, the applicant would thereby have been fully compensated for such prejudice as she had been sustained.Accordingly, this appeal will be allowed.