Craven Textile Engineers Ltd v Shires [1998] UKEAT 530_98_3004

EAT
Craven Textile Engineers Ltd v Shires
[1998] UKEAT 530_98_3004 · 1998-04-30
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the refusal of an Industrial Tribunal to grant the Respondents an adjournment. The case is set for hearing on 24 April, in other words for tomorrow.In arriving at my conclusion on this appeal I have taken into account the materials supplied to the court by the Respondent, who is the Appellant here, Craven Textile Engineers Ltd and in particular a fax which we received from them.The background facts as they appear to be may be shortly stated. The Applicant before the Industrial Tribunal claims that he was employed by the Appellant from 4 November 1991 to 2 December 1997 and that he was dismissed in circumstances entitling him to various payments.The complaint was presented to the Industrial Tribunal on 3 February 1998 and identified as the employer Mr T. Hobson, Craven Textile Engineers Ltd, giving their address as 7 High Croft Way, Farnhill, Keighley with a postcode. It is to be noted that that is the correct address and postcode of the Company's registered office.In the normal course of events that application should have been copied to the Respondents and they should have been invited to enter an appearance. According to the Respondent/Appellant they received a communication from the Industrial Tribunal on 23 March. That was a communication which was dated 16 March giving notice of a hearing. By letter dated 25 March the Respondent/Appellant indicated that they were somewhat surprised to have received a notice of hearing. They say that "they never before appeared at the Tribunal and cannot understand why no details of the supposed claim had been received by them". The writer of the letter, Mr Hobson, also noted that "the notice names me personally as a Respondent" and he wanted to know why that was so.That letter was responded to on 31 March 1998, by a Chairman of the Tribunals who refused the request for a postponement contained in the letter of 25 March and directed that copies of the Originating Application should be enclosed, as they were, and informed the Company that should they wish to submit a Notice of Appearance they should do so at the earliest available time and, if needs be, they should ask for an extension of time.On 3 April the Company acknowledged receipt of the Originating Application and they filed a Notice of Appearance. It is clear from the terms of that document that there are significant issues joined between the parties as to the Applicant's entitlement, if any, to the sums which he is claiming.By letter dated 8 April the Industrial Tribunal indicated that they had received the Notice of Appearance, that an extension of time sufficient to validate it had been granted, but that the question still remained as to whether it was reasonably practicable for them to have presented it within time and, if the Tribunal were satisfied that it could have been filed within time, then the question of costs would arise. By the same date the Tribunal notified the Company that the hearing was to take place on Friday 24 April.By letter dated 9 April the Company complained about the Tribunal's threat on the question of costs and indicated that the Company was to close on 9 April for the Easter holiday period and re-open on 20 April, just four days before the Tribunal date; and I quote:
"... due to existing commitments it would be impossible to prepare our case and have consultation with our solicitors before 24 April and we do not even know if he would be available on that day in any event."
Therefore, they applied once again for an adjournment.By letter dated 14 April the Tribunal said that a Chairman had directed that the request for an adjournment was refused and that the case remain listed for 24 April.In their Notice of Appeal under the heading "Reasons for Appeal" they have said this:
"We are a small privately owned company which relies on Mr Hobson securing work and it is not possible to consult with our solicitor regarding this matter and have our case prepared by 24th April. Appearing on the 24th April would also mean we would be unable to honour work commitments already given to our customers, resulting in a loss of income and future business."
That was a document which was dated 20 April.By a fax which was transmitted to us yesterday at 4.51 pm the Company say this:
"I spoke to our solicitor indicating that we were away until 20 April and he said he was unavailable anyway for three days of the week commencing 20 April and due to our own commitments it was impossible to arrange a meeting before the Tribunal date. He advised we seek an adjournment once again, a course he advised was quite reasonable in view of the short notice and the holiday period which had already been arranged. Again, we sought an adjournment which was refused."
In the light of those documents I must now reach a conclusion. I have to say at the outset that the question as to whether a case should be adjourned or not involves the exercise of a judicial discretion. That discretion is vested in the Industrial Tribunal and this court can only interfere with it if satisfied that there has been a misdirection or a wholly unreasonable exercise of the discretion.Justice must be done between the parties and, it seems to me that the Industrial Tribunal, whilst entitled to refuse the request for an adjournment which was made, will perhaps have to reconsider the question if a further application is made to them tomorrow when the case comes on for hearing.We assume that as the Company have been instructing solicitors in this matter, even if Mr Hobson was unavailable for business reasons, their solicitors would be able to send a representative to the Industrial Tribunal to make a request for an adjournment on their behalf, if such was required.The fact that the Company have known of the hearing date for slightly less than a month provides, in my judgment, sufficient time even despite the holiday period for them to have prepared their case with the benefit of legal assistance. The fact that the premises were closed for Easter for what appears to be a relatively long period, that is from 9 April to 20 April, would not in my judgment have been likely to have prevented Mr Hobson taking proper advice during that time.It may well be that the Industrial Tribunal will be concerned in particular to ascertain whether Mr Hobson himself, if a relevant witness to the matters in issue between the parties, is unavailable and had been booked up for 24 April since 25 March.Accordingly, at this stage I am not prepared to accede to this appeal, recognising that a further application for an adjournment can be made tomorrow which, no doubt, will be considered fairly and properly and judicially by the Industrial Tribunal before whom the case is called on.The appeal is dismissed.