Temple Security Services Ltd v Chay [1998] UKEAT 814_97_0206

EAT

Temple Security Services Ltd v Chay

[1998] UKEAT 814_97_0206 · 1998-06-02

JUDGE PETER CLARK :

By an Originating Application presented to the Industrial Tribunal on 25 February 1997 the Applicant, Mr Chay, contended that he was employed by Temple Security Services (TSS) from September 1989 until his constructive dismissal on 15 January 1997. In that pleading he gave the address of TSS as Temple House, 400 Leabridge Road, London E10 7DY. He complained of unfair constructive dismissal; unlawful racial discrimination and unauthorised deductions from his wages.

That application was acknowledged by the Industrial Tribunal on 5 March 1997. The Applicant was informed that a copy had been sent to TSS.

On 17 April the Industrial Tribunal wrote to TSS, with a copy to the Applicant, pointing out that since no reply had been received to their letter of 5 March, the case was to be listed as "Appearance not entered".

It seems that no response to that letter was received by the Industrial Tribunal. On 1 May the Applicant applied to amend the Originating Application; that application was granted by the Industrial Tribunal by letter dated 20 May, a copy of which was sent to TSS.

Also on 1 May a Notice of Hearing was sent to both parties, listing the case for a hearing on 29 May.

On 29 May the Applicant attended in person before the London (North) Industrial Tribunal; there was no Respondent's appearance. The Industrial Tribunal upheld the Applicant's various complaints and awarded compensation totalling £11,461.39. That decision, with extended reasons, was promulgated on 6 June 1997. It names as Respondent, Temple Security Services Ltd (TSSL). A copy of the decision was sent to the parties.

On 13 June North Lewisham Law Centre, now acting for the Applicant, wrote to TSS at 400 Leabridge Road, seeking payment of the sums ordered by the Tribunal.

On 16 June a Company, Temple Security Ltd (TSL) wrote to the Employment Appeal Tribunal indicating that they wished to appeal against the Industrial Tribunal decision. The appeal was listed for a preliminary hearing before a division of the Appeal Tribunal presided over by Judge Hargrove QC on 26 November 1997. On that occasion the Appeal Tribunal allowed the matter to proceed to a full hearing, but gave directions including a requirement that the Respondent file an affidavit within 14 days. In the written transcript of the judgment delivered on that day by Judge Hargrove, it is said:

"First, the statutory declaration must be converted into an affidavit and all documents annexed to it and filed with this Tribunal. That includes all documents received at any time from the Industrial Tribunals, all replies thereto. The affidavit must also deal with enquiries made of all other departments within the Appellant's business, whether or not there has been any receipt of any other documents from the Industrial Tribunal."

There was an express warning that any deviations from the proper procedure would be punished by the matter being struck out.

On 28 November 1997 Mr Hewison, a Personnel Manager, who had appeared on behalf of the Appellant before the Appeal Tribunal two days earlier, swore an affidavit which was filed in purported compliance with the EAT order.

By an Amended Answer and letter dated 23 February 1998, the Applicant, Respondent to the Appeal, sought an order striking out the Notice of Appeal on the grounds that the Appellant had failed to comply with the EAT order made on 26 November 1997; in particular, in that the affidavit of Mr Hewison failed to exhibit correspondence between the Company and the Industrial Tribunal, despite referring to such correspondence in the body of the affidavit, and further, the affidavit did not deal with any enquiries made by Mr Hewison of other departments in the Appellant's business, as to correspondence with the Industrial Tribunal.

That application came before the Registrar on 11 March 1998 who ordered that the appeal be struck out upon the Appellant's failure to comply with the order made on 26 November 1997. Against that Registrar's order there is now an appeal before me.

At the outset Mr Diamond told me that he is instructed by TSL. Until June 1997 the shares in both TSL and TSSL, both trading then from 400 Leabridge Bridge Road, were owned by a Mr and Mrs Harvey. However, at that time the shares in TSL only were acquired by Atlas Cleaning Ltd, who instruct Mr Diamond. Mr Hewison, formerly Personnel Manager of both TSSL and TSL was, by November 1997, employed by TSL only, as appears from the rubric at the head of his affidavit sworn on 28 November.

It was submitted that since TSL was not the Respondent below against whom the Industrial Tribunal's order was made, that being the wholly separate Company, TSSL, Mr Diamond's clients had no standing to prosecute this appeal.

To that Ms Gill responded that I should consider joining TSL as a party under the provisions of Rule 18 of the EAT Rules. Mr Diamond opposed that application on the grounds that it was inappropriate because TSL is incapable of prosecuting the appeal. I acceded to Ms Gill's application on the basis that this entire appeal process had been instituted and continued by TSL. See their letter of 16 June 1997, standing as the substantive Notice of Appeal, and Mr Hewison's appearance before the EAT on 26 November, followed by his affidavit sworn on 28 November, and subsequent correspondence from TSL to the Registrar, particularly their letters dated 9 and 13 March 1998.

Mr Diamond then argued that the Registrar's order was wrong, in that there had been substantial compliance with the EAT order of 26 November. Mr Hewison had done his best to produce an affidavit before he received a transcript of the judgment delivered by Judge Hargrove. I reject that submission on two grounds; first, Mr Hewison was present when Judge Hargrove delivered his oral judgment on 26 November. There is no suggestion that that differed materially from the transcript. Secondly, there was clear non-compliance in that first, no correspondence, although mentioned in the body of the affidavit, with the Industrial Tribunal was exhibited to that affidavit, and further, Mr Hewison does not depose to any steps which he has taken to make enquiries as to what correspondence was received from the Industrial Tribunal within the business. In these circumstances I dismiss the appeal against the Registrar's order.

COSTS

Ms Gill submits that this appeal was unnecessary within the meaning of Rule 34(1) of the EAT Rules. It was, on TSL's case, brought by a party which was not the unsuccessful Respondent below. The fault lies solely with TSL. Mr Diamond submits that the appeal was brought by TSL under an honest mistake as to their liability under the Industrial Tribunal's order. In my judgment Ms Gill is correct. Having joined TSL as a party to the appeal I find that TSL was at fault in bringing and prosecuting this appeal unnecessarily.

Accordingly I shall make an order for Mr Chay's costs in the potential appeal to be paid by TSL. That includes the costs in the substantive appeal as well as the appeal against the Registrar's order. Mr Chay is legally aided and accordingly there will be an order for legal aid taxation of his costs.

Finally I should add this, for the avoidance of doubt. I have joined TSL as a party in this appeal only. Having considered the matter I have concluded that I have no power in the circumstances of this case to add TSL as a Respondent to the Industrial Tribunal proceedings below. Any application for that purpose must be made direct to the Industrial Tribunal.