Plastics Ltd v Ter Elst [1998] UKEAT 294_98_1702

EAT
Plastics Ltd v Ter Elst
[1998] UKEAT 294_98_1702 · 1998-02-17
MR JUSTICE KIRKWOOD : This is an appeal by H K Plastics Ltd from the refusal of a Chairman of an Industrial Tribunal to postpone a hearing in fact fixed for 19th and 20th February 1998.H K Plastics is the respondent to two applications made by Mr Ter Elst to the Industrial Tribunal, both of which arise out of his employment by the company between a date in 1988 and the end of March 1997.In the first of the applications to the Industrial Tribunal made on 26th June 1997, the applicant complains of unfair dismissal. In the second application to the Industrial Tribunal made on 2nd July 1997, the applicant claims a declaration as to certain pecuniary entitlements arising out of the terms of his employment.The amount of money he seeks in respect of that second application is outside the jurisdiction of the Industrial Tribunal. It is the applicant's intention to obtain the declaration from the Industrial Tribunal and then, armed with that, to litigate in the civil courts, probably the High Court, to establish the amount of his entitlement and recover it.In respect of that second contractual claim, there are not only the form IT1 but also further particulars prepared on 25th November 1997, which contend that the agreements relied upon are at least in measure oral agreements made with Mr Haasewinkel. We have been told today that in fact some documents have since emerged on discovery which evidence some or all of those oral agreements. It clear, however, that on the contractual claim the key man on H K Plastics' side is Mr Haasewinkel. He is indeed effectively the owner and he is the Chairman of the company.The course of the proceedings has not been unchequered. The tribunal fixed a pre-hearing discussion for 2nd September 1997. That was then moved at the request of the applicant to 10th October 1997. The case was fixed for hearing on 8th and 9th December 1997. The applicant requested postponement because there had not been time to prepare. That was refused. The applicant then applied for a postponement on the ground of medical incapacity. The Chairman indicated that the case would not be postponed on the ground of any difficulty relating to documents but asked for further information as to the medical incapacity. There was then furnished a medical report on the applicant's behalf which said:
"For medical reasons Mr J A J Ter Elst born 26.07.60 is not allowed to travel on 8 December."
In the light of that communication, the fixture was postponed.The Industrial Tribunal then properly tried to find a date for a new fixture and sent out a pro forma to the parties asking them to indicate dates to avoid in February and the appellant before us did not indicate the necessity to avoid 19th and 20th February, so for that, and other reasons, the case was fixed for then.On 19th January, however, the appellant wrote to the Industrial Tribunal saying that there was a serious difficulty for Mr Haasewinkel because he had a major business commitment in Turkey to meet that week, and asked that the time of the trial be vacated and a fresh date be fixed.The response to that request was a letter from the tribunal a week later, on 26th January 1998. It refused the request:
"This case started last June, and as recently as last December you indicated that the dates provided were clear. It is now past the time when it should be heard. Every tribunal hearing interferes with the schedules of busy people, someone else will have to [ travel to ] Turkey (or deputise at the hearing)."
It has to be said that the concept of somebody else deputising for Mr Haasewinkel, one of the two contracting parties, as I have indicated, is manifestly unrealistic.In response to that letter and on receipt of it, the appellant wrote again asking for the tribunal to reconsider its view. The letter pointed out that Mr Haasewinkel's evidence in written form will undoubtedly be rejected by the tribunal as his evidence is too controversial to be dealt with by means of hearsay. Inevitably it will be necessary for him to be cross-examined. It was not really a matter of Mr Haasewinkel being busy: the company is a small one, which belongs to him, it is driven by him, he is responsible for attracting new business, there is no one who could do the business in Turkey for him, and the details of that are set out. At the end of that letter, written on the advice of Counsel, the request was made for the opportunity to make oral representations to the Chairman.The response to that was that:
"The Chairman does not believe that Mr Haasewinkel did not in December 1997 know of the event in Turkey due to occur in February. Indeed, he indicated that the dates which were fixed were suitable."
There seems to us to be some possible contradiction in that paragraph. The letter continues:
"The Chairman has also asked me to point out that by 19 and 20 February 1998, this case will have taken about eight months to get to a hearing which is far too long.
The Chairman does not see what can be said in oral representation that can not be put in correspondence. ..."On 9th February 1998 a further letter was written to the Chairman:
"... it is imperative for his proper business interests for him to be in Turkey on the days when this Tribunal is being heard ..."
On 11th February 1998 the Industrial Tribunal replied:
"A Chairman of the Tribunals has instructed that I write and inform you that your communication adds nothing to what the Chairman has already considered. The refusal of a postponement is repeated for the reasons already communicated."
On 12th February 1998 a Notice of Appeal was received by the Employment Appeal Tribunal.I observe in passing that I find it regrettable that the appellant's solicitor did not ask the other side whether they might be agreeable to any postponement, or to see whether an arrangement could be worked out between the two of them to find another mutually convenient date on terms or not, as the case may be, and that is regrettable aspect of the case.Today the appellant recognises that the decision of the tribunal not to postpone lies within the discretion of the Chairman. As such, it cannot be overturned except on the commonly accepted grounds which have been rehearsed to us by both parties.On the part of the respondent to this appeal, it is said that the tribunal Chairman correctly weighed the matters, including the prejudice to Mr Ter Elst if the case is postponed. The matters of prejudice outlined to us are: first, the delay in the trial of the case; secondly, that he has had to make arrangements with his employer to have 19th and 20th February 1998 off for the hearing; and next, he is already committed to the expense of an air flight and hotel accommodation.The Chairman of the tribunal has rightly placed a very considerable weight upon the desirability of such matters as these coming to an early hearing. Justice delayed is justice denied. But it does seem to us that the Chairman has not attached sufficient weight to the other principle that justice must be done and felt and seen to be done between the parties. In this instance Mr Haasewinkel can only attend the hearing under the undoubtedly very considerable pressure of otherwise avoidable prejudice to his small business. His absence from the hearing will result in its proceeding without the primary evidence of him which is essential to a proper determination, and in that regard, we bear in mind that it is not just the Industrial Tribunal's decision upon which this hangs, but some substantial civil litigation as well.The importance of an early hearing cannot be over-stressed. But here there are capable and experienced businessmen, the one on the one side, the one on the other with an important and to them significant business dispute which must be determined in a comprehensive and fair way. It seems to us that the right approach to this case is for the Industrial Tribunal not to make the early despatch of business the overwhelming consideration, but to allow for this dispute between these responsible business people, to be determined in a business-like fashion.We have reached the conclusion that the case should be postponed from 19th and 20th February 1998; that the tribunal Chairman was wrong for the reasons we have indicated. But we say that having regard to exchanges that occurred during this hearing to do with some part at least of the prejudice that might be suffered by the respondent to this appeal. Mr Linden indicated that the concept that his client should bear the costs thrown away is really one that is more or less irresistible. It is in reliance upon that concession by Mr Linden that we consider that that part of the prejudice, and that after all that is the main part of the prejudice, to Mr Ter Elst, can be avoided. It may be that the question of costs will have to go to taxation, but in that regard we wish to make it absolutely clear that the lateness of the Notice of Appeal, 12th February 1998, which meant that the appeal came on only two days before the hearing, has, in our view, made it inevitable that Mr Ter Elst will have incurred travel and accommodation expenses which would not otherwise have been lost. Whatever the legal expenses in respect of this postponement may amount to, it seems to us to be inescapable that the appellant will have to defray any loss that Mr Ter Elst sustains in respect of travel and accommodation to the extent that he is already and unavoidably committed to it.We accordingly allow the appeal for the reasons that I have given.MR JUSTICE KIRKWOOD : The order will be that the appellant will pay the respondent's costs thrown away by the postponement to include the costs incurred by Mr Ter Elst in his travel and accommodation to which he is irrevocably committed.