Tull & Ors v Severin & Anor [1998] UKEAT 884_97_2602

EAT

Tull & Ors v Severin & Anor

[1998] UKEAT 884_97_2602 · 1998-02-26

MR JUSTICE BELL : The appellants in this case are Mr Tull, Mr Simmons and Mrs Eccles, who are members of the Governing Body of the African Caribbean Community Council. The respondents to the appeal, Mrs Severin and Mrs Sobers, worked for the Council or perhaps I should say, did work for the Council for about two years to 16th October 1996. They made Originating Applications dated 8th July 1996 to the Industrial Tribunal complaining of unlawful deduction of wages. The appellants failed to enter Notices of Appearance, they were given an extension of time to enter Notices of Appearance, but again failed to do so. All that was by August 1996.

The Originating Applications were fixed for hearing on 13th May 1997 by an Industrial Tribunal to be held at Stratford. The tribunal consisted of a single member sitting alone as Chairman. Mrs Severin and Mrs Sobers attended for the hearing with Counsel from the Free Representation Unit. The written decision of the Industrial Tribunal records Mr Simmons as attending, but it appears clear that Mr Tull also attended. In any event, neither of them were allowed by the Chairman to take part in the hearing into the question of whether there had been unlawful deductions of pay or not, no Notices of Appearance having been entered.

Mrs Severin and Mrs Sobers and their Counsel did take part. The decision of the tribunal promulgated on 6th June 1997 was that:

"(i) The First Applicant [ Mrs Severin ] is entitled to be paid the sum of £3,785.80 by the Respondents in respect of an unauthorised deduction from wages and the Tribunal orders the Respondents to pay this sum to the First Applicant.

(ii) The Second Applicant [ Mrs Sobers ] is entitled to be paid the sum of £3,154.84 by the Respondents in respect of an unauthorised deduction from wages and the Tribunal orders the Respondents to pay the Second Applicant the sum of £3,154.84."

Those are substantial sums of money for individuals such as the three respondents to the applications and for a body such as the Council.

By letter dated 16th June 1997 the appellants, that is the respondents to the Originating Applications, applied for a review of the Industrial Tribunal's decision. That application was refused in writing on 2nd July 1997 on the direction of the same Chairman. So the appellants have appealed from the decision dated 6th June 1997 to this Appeal Tribunal.

The matter is of some importance to all the parties. The appellants feel hard done by, because they would have liked to have disputed the case of Mrs Severin and Mrs Sobers in a number of respects, not least on the fundamental question as to whether Mrs Severin and Mrs Sobers were employed by the Council at all, as opposed to being voluntary workers who received some reward in money or kind from time to time. We have been given material on both sides, which shows a very wide range of issues on matters which could well be relevant, not only to whether Mrs Sobers and Mrs Severin were employed by the Council, but also if so, the extent to which they were entitled to pay and how much pay they were owed.

County Court enforcement proceedings have been taken on behalf of Mrs Severin and Mrs Sobers and are in fact far advanced.

Paragraph 2 of the Industrial Tribunal's decision dated 6th June 1997, dealt with the question of whether Mr Simmons, Mr Tull and Mrs Eccles were entitled to take part in the Industrial Tribunal on 13th May 1997 in the following terms:

"Mr St C Simmons appeared at the Tribunal although no appearance had been entered by the Respondents. Mr Simmons said that the Notice of Appearance had been forgotten amid resignations and the paperwork of the Respondents being in various different places. The Chairman took note of Rule 3(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 as requiring that the Respondents should file a Notice of Appearance within 21 days and also noted that the Respondents had been given an extension of time of 14 days in which to enter their Notice of Appearance as a result of their letter of 6 August. However, no appearance had been entered. The Chairman also took note of Rule 3(4) and noted that she could not see any reason why it had not been reasonably practicable for the Respondents to enter an appearance. Accordingly, the Respondents were not entitled to take part in the proceedings."

The letter dated 2nd July 1997 rejecting the application for a review stated:

"The Chairman notes that although Mr Simmons and Mr Tull of the Respondents attended the hearing, they were not permitted to take part because they had not entered an appearance. She notes that the Respondents did not make application for leave to enter a late Notice of Appearance either at the hearing or in their letter of 16 June."

The essence of the appeal is that it is a fundamental principle of natural justice that a tribunal should hear both sides, which the Industrial Tribunal refused to do here. Whatever may be said about failure to give Notice of Appearance, the tribunal should at least, it is said, have given the appellants the opportunity not just to explain their default, but to present the merits of their case, at least in summary. It should have considered any prejudice which would be caused to the applicants (that is the respondents to this appeal) if there was an adjournment; considered whether such prejudice could have been compensated in costs or otherwise; and considered whether any such prejudice was so severe and incapable of remedy as to outweigh the essential requirement to do justice between the parties, having heard both sides.

Paragraph 2 of the Industrial Tribunal's decision, which we have already read, indicates that Mr Simmons was heard only on why Notice of Appearance had not been given and not on any of the matters which the appellants say they should have been heard upon.

It is contended on Mrs Severin's and Mrs Sobers's behalf that the Chairman did at least hear some representations from Mr Simmons and that the question of delay was clearly far and away the most important consideration in the circumstances of this case, and that the Chairman had a wide discretion which is not ordinarily reversible on appeal.

We must start with the relevant Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1 of which contains the Rules of Procedure. Rule 3(1), in so far as it is relevant to the present appeal, reads:

"A respondent shall, within 21 days of receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance-

. ..

(b) stating whether or not he intends to resist the applicant; and (c) if he does intend to resist it, setting out sufficient particulars to show on what grounds."

Rule 3(2), in so far as it is relevant to the present appeal, reads:

"A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except- (a) to apply under rules 15 for an extension of the time appointed by this rule for entering an appearance;

...

and in the rules which follow, the word "party" only includes such a respondent in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes."

Other paragraphs of rule 3(2) refer to review of a tribunal's decision where a notice of appearance has not been entered, but we need not consider those paragraphs, since this appeal is concerned with the original Industrial Tribunal's decision not to allow the appellants to take part in the substantive hearing and not with the refusal to review.

Rule 13(1) provides that:

"Subject to the provisions of these rules, a tribunal may regulate its own procedure."

Rule 15 to which rule 3(2)(a) refers, reads at (1) as follows:

"A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired."

It is plain, in our view, that in accordance with the general principle as to construction of rules and statutory provisions, the general provision in rule 13(1) must be subject to the particular provisions in rule 3(2)(a) and rule 15(1).

In this case, as the terms of the rejection of the application for review made clear, the Chairman on 13th May 1997 stood on the fact that neither Mr Simmons nor Mr Tull managed to mouth the words "we apply for a further extension even now of the time for entering an appearance" or some similar expression such as that. Had either Mr Simmons or Mr Tull said words to that effect, the Chairman would have had to take account of all relevant factors including not just the explanation or lack of explanation for the delay, which is of course an important factor, but the merits or possible merits of any defence to the Originating Applications; the possible prejudice to the respondents to the applications if they went unheard at the substantive hearing of the applications; the prejudice to the applicants of any delay involved in an extension of time; whether an award of costs could compensate any prejudice to the applicants; and any other relevant factors, weighing and balancing them one against the other so as to reach a conclusion which was objectively justified on the grounds of reason and justice. See Kwik Save Stores Ltd v Swain & Others

[1997] ICR 49

, at pages 54H-56C. In the Kwik Save case the respondents had prepared a Notice of Appearance, but the advice given in that case as to the proper approach where there is an application for extension of time for Notice of Appearance, is in our view, equally valid where the application is made without a written Notice having been drafted for presentation to the tribunal.

In our judgment the Chairman was wrong to take the stand that she did, that the appellants had made no application for a further extension of time for entering an appearance. In our view, the very attendance at the hearing on 13th May 1997 of Mr Simmons and Mr Tull clearly wanting to be heard amounted to an application for an extension of time for entering an appearance without which they would not be able to participate as respondents in the substantive hearing, whether or not they had drafted a proposed Notice of Appearance when they attended and whether or not they expressly asked for an extension of time. Moreover, the circumstances in which they attended at the tribunal wishing to be heard called for the Chairman of her own motion to consider extending the time for presenting a Notice of Appearance as rule 15(1) allows.

Deciding the question of whether time for a Notice of Appearance should be further extended required the Chairman to consider the reasons, if any, for not having presented a Notice of Appearance so far, but it also required the Chairman to consider all other relevant factors to reach a just decision. In the event she failed to do that.

For all these reasons, we consider that the Chairman was wrong not to allow the appellants to be heard without first considering all the relevant factors and deciding whether she should in fact extend their time for entering Notices of Appearance.

Having decided that point of principle, we have invited Mr Biebuyck on behalf of the appellants and Mr Lambe on behalf of the original applicants (the respondents to this appeal) to address us on whether in fact time should be extended for presenting a Notice of Appearance with a view to a rehearing of the Originating Applications of unlawful deduction of pay. We have decided that we can go on to decide for ourselves whether time for presenting Notices of Appearances can even now be extended. We can only take that course on the basis that there is in fact no valid excuse for the respondents to the Originating Applications not getting Notices of Appearance in time.

Mr Biebuyck's argued before us this morning that granted that there was no valid excuse for the respondents delay, excuse for delay or lack of it was not conclusive. He contended that there is a very serious and substantial discrepancy of fact. We have already indicated that in our view that is so. As Mr Biebuyck says, the original applicants' case was that they were employees of the Council working 40 hours a week, whereas the case of the appellants, the respondents to the applications, is that Mrs Severin and Mrs Sobers were volunteers only working about three hours a week. So Mr Biebuyck says, and we agree, that there is an arguable defence quite apart from any question of amounts of money. In addition, there is clearly an arguable defence as to what, if anything, was due to Mrs Severin and Mrs Sobers even if they were employed by the Council. Mr Biebuyck points out that the respondents are people of modest means. They are but some of the members of the Committee of the Council, which is a body devoted to charitable work. He contends that there would be immense prejudice to the respondents if they cannot put their case before the Industrial Tribunal. There will be prejudice to the applicants if the matter has to be reheard with consequent delay; but there is no prejudice, he says, beyond that fact of delay. There is no question of them having expended costs or significant costs because they were represented on a pro bono basis before the Industrial Tribunal. Lastly, Mr Biebuyck tells us that in fact Mrs Severin and Mrs Sobers have made applications for unfair dismissal to the Industrial Tribunal which have in fact been stayed pending the disposal of this appeal. So those applications will have to be heard in any event.

Mr Lambe on the other hand, on behalf of the applicants, the respondents to this appeal, says, quite rightly, that delay may be a decisive factor. He points out that there was substantial delay here of ten months before the Industrial Tribunal hearing in May 1997, that itself is now nine months ago, so if the question of unlawful deduction has to be remitted for rehearing, it will probably be about two years since the time of the Originating Applications before they are disposed of.

We have done our best to balance those matters. At the end of the day we have come down firmly in favour in concluding that the interests of justice demand that the Originating Applications in relation to unlawful deduction be heard in the presence of all the parties, all the parties having due opportunity to put their cases forward. We would have decided that the prejudice in shutting the door to the respondents would have outweighed what we do see as the considerable prejudice of delay to the applicants. But there is this further matter to consider. If the applications for unlawful dismissal go ahead, it is fair to assume that Mr Simmons, Mr Tull and Mrs Eccles will appear and will be represented on those matters. It is at least conceivable that the tribunal disposing of those matters will decide that Mrs Severin and Mrs Sobers were not employed by the Council at all. That would lead to the quite bizarre result of two inconsistent tribunal decisions.

Having looked at the matter in the round and done our best to balance all the factors put forward by Mr Biebuyck on the hand, and Mr Lambe on the other, we have decided that the proper course to take in justice is to allow this appeal and to say that the appellants' time for presenting Notices of Appearance to the Originating Applications for unlawful deduction should be extended to 14 days from today's date. We will make that an "unless" direction. Unless Notices of Appearance are in the hands of the Secretary to the Industrial Tribunals by 14 days from today, 26th February 1998, the Industrial Tribunal's decision will stand. But if Notices of Appearance are so presented, then the matter will be remitted to a new Industrial Tribunal with a different Chairman for rehearing. It would appear to us on the information before us that it would be make good sense for the applications in respect of unlawful deduction to be heard with the applications in respect of alleged unfair dismissal, but we have no wish to interfere with the Industrial Tribunal's discretion to take a different course.