MRS A SUTTON v ST ALBANS & HEMEL HEMPSTEAD NHS TRUST [1999] UKEAT 1337_99_0112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1337_99_0112Case No Appeal No. EAT/1337/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A SUTTONAPPELLANTST ALBANS & HEMEL HEMPSTEAD NHS TRUSTRESPONDENT
Before
Mr Justice LindsayDate 1 December 1999
[1]APPEARANCES For the Appellant MR M JONES (Solicitor) Underwoods 1 Holywell Hill St Albans Hertfordshire AL1 1ER MR JUSTICE LINDSAY (PRESIDENT) : We have before us the interlocutory appeal of Mrs Anjani Sutton in the matter Sutton against St Albans and Hemel Hempstead NHS Trust. There is a need for speed today because we are concerned with the vacation or not of a hearing which otherwise will take place tomorrow, 2 December. We need to say something of the procedural history.[2]On 8 September 1999 Mrs Sutton lodged an IT1 claiming racial discrimination and victimisation against the Trust. She is a Registered General Nurse. She has been employed by the Trust since 1975. In her particulars of complaint she added a Second Respondent, an individual, Claudette Aguilar.[3]On 8 October the Trust's Solicitors entered a Notice of Appearance. The Second Respondent, Claudette Aguilar, was then abroad and the Solicitors for the First Respondent asked for an extension of time for her entry of a Notice of Appearance. The Solicitors also lodged a request for Further and Better Particulars. No point was taken that the IT1 itself had not specified Claudette Aguilar as a Second Respondent. It was quite plain that the accompanying papers described her as such and it was not said that she was not a possible candidate to be a Respondent and to be Second Respondent.[4]On 22 October Mrs Sutton's representative supplied the Further and Better Particulars. At some date, not visible from the papers but before 9 November, a Directions Hearing was fixed for 2 December 1999. On 9 November 1999 Mrs Sutton's Solicitors asked by fax that that date should be adjourned. They said:
"In relation to the Directions Hearing listed on 2 December 1999, I apply for a postponement as I am representing another client at this Tribunal on the same day. There are no other fee earners that can attend the Tribunal on this day. The Applicant's dates to avoid are 2, 3, 6, 8, 14 and 15 December 1999 and 7 January 2000. I ask that this matter is listed for a Directions Hearing in the new year."
[5]The firm of Solicitors, Underwoods, who wrote that letter are a firm with two partners and several assistant solicitors. It took eight days for the Employment Tribunal to answer that fax and on 17 November the request was declined. The answer came back from the Employment Tribunal:
"A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay. The Chairman refuses your request for the following reason(s): It is not normally the practice of these Tribunals to postponed hearings because a particular representative is unable to attend. The Chairman expects the representative to ensure that alternative representation is arranged."
[6]On the same day Underwoods, by their Mr Marc Jones, an Assistant Solicitor there who has also appeared before us today, wrote:
"In relation to the Directions Hearing on 2 December 1999, I have already made it clear that I am representing another client on the same day. There are no other fee earners that can attend in my place . I have dealt with this case throughout and will be conducting my own advocacy at the Tribunal. If another fee-earner has to take over the case now, it will break the continuity, lead to more work, increased costs and above all an unhappy client."
He also referred the Tribunal to the case of Maltez v Lewis , The Times, 4 May 1999 which states that:
"The right of a litigant to be represented by solicitors or an advocate of his or her own choice was fundamental and well established ."
[7]This time the response of the Tribunal took only five days and on 22 November the renewed request was refused. The Tribunal said this:
"The Chairman has considered your renewed request for a postponement in this case, but has refused it for the following reasons: The Chairman is not satisfied that this case cannot be dealt with by another representative. Employment Tribunals are intended for parties to represent themselves and the Chairman is not willing to delay proceedings for the convenience of a representative. The Tribunal cannot list to suit Representatives who have many cases running at the same time in the Tribunal."
[8]One can readily see the force of the Tribunal being unable to list to suit representatives but to say that Tribunals are intended for parties to represent themselves gives a quite wrong impression. The Tribunals frequently welcome and, indeed, sometimes yearn for professional representation and the Respondent Trust is here in the hands of Solicitors.[9]On 23 November Underwoods made yet another request. They said:
"I note that my request for a postponement of the Directions Hearing on 2 December 1999 has been refused again. Once again I ask that the Chairman re-consider my application. This matter is being funded by legal expenses insurance. The insurance company will not provide funding for another fee earner to undertake any work. I enclose a copy of the insurance company's letter confirming the same. In reiteration, there are no other fee earners that can attend in my place ."
And a little later:
"I disagree that the Applicant can attended the hearing unrepresented. She has no knowledge of procedure. It is her choice to be represented. She would like me to represent her."
The letter referred to, that purports to come from the insurance people, is addressed to Mr Jones at Underwood: it says:- "I refer to our telephone conversation on the 22 nd November, confirming that as the insurers we require you to have complete conduct of this particular file. As I am sure you are aware, we prefer for one solicitor to deal with a case, to ensure that a relationship is built up between the solicitor and the client."[10]On 25 November the Employment Tribunal again declined the request, giving no new reasons. On the same day Mrs Sutton faxed the Regional Chairman directly herself. We are bound to say she did herself no great service by taking points such as this:
"This obstruction could be seen as a conspiracy with the defendants or does the court, or any member of the court, have a personal vindictive attitude to Mr Marc Jones our solicitor."
No answer appears in our bundle.[11]On 29 November a Notice of Appeal was lodged on behalf of Mrs Sutton, appealing against the decisions of 17, 22 and 25 November, which had refused adjournments.[12]The First Respondents by their Solicitors resist the appeal by lodging Grounds of Resistance on paper. They have not attended to oppose. They emphasise that the EAT has a limited jurisdiction, in the sense that it is only in respect of errors of law that the Tribunal's discretion can be overturned at the EAT. They say, in that regard:
"That nothing is shown here to have been taken into account which should not have been, nor that anything has been left out of account which should have been taken into account."
[13]But that latter consideration does give rise to doubt. So far as we can tell from the papers, there was a request on behalf of the Second Respondent, Claudette Aguilar, for an extension of time for her to enter a Notice of Appearance. She has not, so far as we can see in the papers before us, which might not be complete, abandoned that request. Nor has it, so far as we can see, been ruled upon. She is thus not in a position to be ignored as a party under Rule 3 or to be unable to take any further part in proceedings. There is nothing to indicate that the Tribunal had her position in mind in refusing adjournment. If they had had it in mind, they might (it does not necessarily have to be put higher than that) have thought that a Directions Hearing was premature at a stage when it was not even certain exactly who the parties were going to be. Furthermore, the First Respondents, when they requested Further and Better Particulars said:
"Please note that we have a request for Further and Better Particulars to the Notice of Appearance in order that we can respond fully to the Originating Application."
[14]That suggests that when Further and Better Particulars came to be supplied there might well be a more full response than hitherto. The Particulars were supplied, as we have already pointed out. Is there to be some further formal response by the First Respondents to those particulars?[15]Again, reflection on that subject, namely whether there is to be amendment to the pleadings, to call them that, is a factor that might properly have been taken into account but which does not seem to have been taken into account in the refusal of an adjournment. If the position was still that the First Respondents' Solicitors were going to be amending in any case, one can see a case for getting that formal amendment lodged, even before the Directions Hearing, so that at the Directions Hearing the parties would better know what the issues in the case were going to be.[16]In a less hurried world we would have wished to be addressed by both sides on whether the Tribunal may have overlooked factors which would have made the proposed 2 December 1999 hearing premature, or even deficient in the sense of not all of the necessary parties having been given notice of it. But what is in issue, as we have pointed out earlier, is a hearing for Thursday, 2 December 1999 and we only have one side in front of us.[17]In these hurried circumstances the more just case, in our view, is to look at the matter as if there was error of law because we cannot be sure that there was none and, indeed, are far from sure that there was none. On that basis we take into account that we are not concerned with a full hearing but only a Directions Hearing, that the request for an adjournment was made in a timely fashion (namely by 9 November for a hearing on 2 December 1999) that the Applicant's Solicitors offer many possible dates in December 1999 for the hearing and seek to avoid only one day in the year 2000.[18]We take into account that no reason has appeared for anyone to disbelieve the assertion by Underwoods that no other fee earner is available to take the case on 2 December. We take into account that the Applicant's insurers appear to support the view that Mr Marc Jones of Underwoods should proceed with the case, and only he. We notice that the client, Mrs Sutton, resolutely cleaves to Mr Marc Jones, the particular Solicitor concerned, and we notice that the Tribunal's objections are very much of a general nature. They do not relate to particular factors that apply to this case only. That does not belittle them as being general considerations but there is no suggestion, for example, that there is, in this particular case, a history of previous delays or anything of that nature.[19]We bear in mind as a possibility, but no more, that the First Respondents' pleading may yet still need to be amended and as yet is incomplete and that Claudette Aguilar's position is still unclear. But, most of all, we must notice that the Respondents' Grounds of Resistance nowhere hint that any prejudice will be suffered if the 2 December date is adjourned. Not only do they not mention it, we have been unable to detect any prejudice ourselves. It is not even as if the substantive hearing will necessarily be delayed if the Directions Hearing is delayed.[20]In these circumstances, we direct the hearing of 2 December to be vacated forthwith. The Appellant's Solicitors are at liberty to fax or to telephone the Tribunal to such effect immediately. It will be for the parties to return to the Tribunal to obtain an early alternative date for a Directions Hearing but it would be as well to arrange that, before that date, the Respondents' Solicitor should indicate whether, now they have the Applicant's Further and Better Particulars, their IT3 is to remain unamended or, if it is to be amended, in what precise terms and whether Claudette Aguilar abandons her request for an extension of time for her to lodge a Notice of Appearance, or, alternatively, does lodge one and, if so, in what terms and thirdly, if she elects not to put in a Notice of Appearance, what relief the Applicant can or does ask for, if any, in default of Appearance.[21]Those are matters which could usefully be addressed before the Directions Hearing takes place but, simply reverting to the business of the day, we vacate the hearing of 2 December 1999. We leave the parties to arrange an alternative.