MS R F BEN-EDIGBE v NUFFIELD HOSPITAL [1999] UKEAT 1406_98_2110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1406_98_2110Case No Appeal Nos.EAT/1406/98 & EAT/302/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS R F BEN-EDIGBEAPPELLANTNUFFIELD HOSPITALRESPONDENT
Before
His Honour Judge Peter Clark Mr A E R Manners Mr R SandersonDate 21 October 1999
[1]APPEARANCES For the Appellant MR S OKOLO (Representative) Community Advocacy & Outreach Consultancy Clapton Business Centre 107-109 Down Road London E5 8DS For the Respondents MR S CRAMSIE (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL JUDGE PETER CLARK : We have before us two appeals brought by Ms Ben-Edigbe, the applicant before the Stratford Employment Tribunal:(1) an appeal against an order made by a Chairman on 11th November 1998 that she provide further and better particulars of her Originating Application ['the first appeal']; and(2) an appeal against an order of a full Employment Tribunal chaired by Mr J N Leonard sitting on 2nd December 1998, dismissing her application on her non-appearance under Rule 9(3) of the Employment Tribunal Rules of Procedure. That decision with summary reasons was promulgated on 11th December 1998 ['the second appeal'].[2]At a directions hearing before Morison J on 22nd January 1999 it was ordered that the appeals be listed consecutively, the second appeal being taken first on the basis that if that appeal fails, the first appeal is rendered redundant. Background[3]The appellant commenced employment with the respondent on 14th November 1994.[4]On 26th March 1998 she commenced these proceedings alleging unfair selection for redundancy, redundancy dismissal, sex discrimination, hurt feelings due to race discrimination and breach of confidentiality. She alleged that she had been dismissed on 7th December 1997 or 7th January 1998. The claim was resisted.[5]On 12th August 1998 a hearing took place before Mr Leonard's tribunal ['the first hearing']. At that hearing the tribunal determined the effective date of termination of the contract as 7th December 1997, but permitted all complaints to proceed notwithstanding that they were presented outside the primary limitation period. Having, so far as was possible, sought to identify the issues in the case the tribunal ordered the appellant to pay the respondent fixed costs in the sum of £250. The day had been wasted because her representative, Mr Okolo, had failed to correctly identify the issues in the case. The matter was adjourned to 2nd and 3rd December 1998. Those orders were contained in a decision with extended reasons dated 20th August 1998. Further, a notice of hearing for 2nd and 3rd December was sent out to the parties on 24th August 1998.[6]At the first hearing the appellant had commenced giving her evidence. It is said by Mr Okolo, her representative, that at that hearing the Chairman imposed what he describes as a "no-contact order", preventing him from having contact with the appellant. We think that the true position is as related in an affidavit sworn by Mr Hart, the respondent's solicitor, on 7th May 1999, namely that the Chairman, in the usual way, told the appellant not to discuss her evidence with anyone. That is not the same as a 'no-contact order'.[7]One of the highly unsatisfactory features of this case is that between April and 27th November 1998 the respondent's solicitors wrote no less than 20 letters, copies of which are exhibited to Mr Hart's affidavit, to her representative and failing replies from him to the appellant directly, but no reply was received to any of them.[8]We asked Mr Okolo about this alleged failure on his part to reply to letters. He accepted that he had received most of the letters, but had not felt that written replies were necessary. However, he tells us that he did not receive a copy of Mr Hart's affidavit, sent under cover of a letter from the respondent's solicitors dated 11th May 1999.[9]Picking up that correspondence following the first hearing, by letter of 15th October the respondent made a request for further and better particulars of the Originating Application. Copies were sent both to the appellant's representative and in view of the history of letters being ignored, to the appellant direct. No response was forthcoming and on 5th November the respondent's solicitors sought an order for particulars from the Employment Tribunal.[10]The order made on 11th November contained an error. The order was to be complied with by 24th October; that error was subsequently corrected by letter dated 18th November. Compliance was ordered by 24th November.[11]There was then a flurry of activity. On 23rd November the appellant's representative served notice that on 2nd December application would be made to correct a date on an order of the Employment Tribunal and to determine whether "date for service of Further and Better Order is capable of abridgement under the slip rule." Further on 24th November 1998 the appellant lodged her Notice of Appeal in the first appeal. In that Notice she asked for a stay of all proceedings in this matter pending the outcome of the appeal. No stay was ordered by the EAT. Further an application for a stay made to the Employment Tribunal was refused by letter of 25th November and the appellant's applications made by letter on 23rd November were ordered to be made at the hearing on 2nd December.[12]On 25th November the respondent's solicitors made application to the Employment Tribunal for an order striking out the Originating Application for want of compliance with the order for particulars made on 11th November and amended on 18th November.[13]The tribunal wrote to the parties on 26th November, stating that that application would be considered as a preliminary issue at the hearing on 2nd December, referring to the respondent's solicitor's letter of 25th November.[14]Mr Okolo tells us that although he received the tribunal's letter dated 26th November, the respondent's solicitor's letter of 25th November was not enclosed. He added that he then visited the Stratford Employment Tribunal offices in person and spoke to Miss Akhtar, the member of staff who had signed the letter dated 26th November. He asked for a copy of the respondent's solicitor's letter of 25th November and was told that a copy would be posted to him. It never was. Further he tells us that, contrary to the evidence of Mr Hart on affidavit, he then spoke to Mr Hart by telephone. He did not ask Mr Hart for a copy of his letter of 25th November since, as Mr Okolo put it, it was for the tribunal to supply him with a copy.[15]On 27th November the respondent's solicitors wrote to Mr Okolo, indicating that if he renewed his application to stay the proceedings on the next occasion (2nd December) they would apply for costs.[16]On 2nd December Mr Leonard's tribunal reconvened ['the second hearing']. The respondents appeared and were represented by Mr Hart. There was no appearance by the appellant or her representative. No explanation for their absence was forthcoming.[17]The tribunal considered the position. They took into account the conduct of the matter by and on behalf of the appellant. It was unreasonable not to respond to correspondence. Without explanation, neither the appellant nor her representative had attended on a date fixed by agreement between the parties on 12th August; confirmed in a notice of hearing on 24th August. The appellant's application for a stay had been refused. The claim had not been prosecuted with reasonable diligence. The Originating Application had been considered by the Employment Tribunal at the first hearing. Further written representations by the appellant's representative, particularly seeking a stay, were considered by the tribunal at the second hearing. In these circumstances they exercised their powers under Rule 9(3) and dismissed the Originating Application. That decision, with summary reasons, was promulgated on 11th December 1998 ['the strike out order'].[18]We observe that no application was made to review that decision under Rule 11(1)(c) of the Employment Tribunal Rules of Procedure or otherwise.[19]The appellant entered her second notice of appeal on 22nd January 1999. It was defective in that no extended reasons for the strike out order were served with the Notice as required by EAT Rule 3(1)(c). However, Morison J exercised his discretion under Rule 39(2) to allow the second appeal to proceed on the basis of summary reasons only.[20]A hearing of these appeals fixed for 25th May 1999 was adjourned as Mr Okolo was unwell. The second appeal[21]In support of this appeal Mr Okolo has submitted a detailed skeleton argument, referring to a number of authorities. We can say with complete confidence that those submissions wholly fail to meet the real point in the appeal which is, did the Leonard tribunal err in law in dismissing the Originating Application on the non-appearance of the appellant and/or her representative at the hearing on 2nd December 1998?[22]We have sought an explanation from Mr Okolo for their absence on that occasion. What he told us was this. He never received a copy of the respondent's solicitors' letter dated 25th November, despite the efforts which he said he made to obtain a copy, earlier recounted in this judgment. In these circumstances he did not have notice of the preliminary issue raised by the respondents and referred to in the tribunal's notice of 26th November. Without knowing the nature of the issue to be determined he could not, in the interests of his client, allow her to be placed at a disadvantage. If he attended the hearing he could be taken to have acquiesced in the issue being raised and determined by the tribunal.[23]He relies on Rule 6(2) of the Employment Tribunal Rules of Procedure, which provides that the tribunal shall not determine a preliminary issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal. Since he was not provided with a copy of the respondents' solicitors' letter of 25th November, Rule 6(2) had been breached and that entitled him not to attend the hearing on 2nd December with his client. When asked whether he had advised his client not to attend the hearing he told us that he could not advise her either way. She was waiting for him to tell her whether she should attend; he did not tell her to do so.[24]He further makes the point that he had complied with the order for further and better particulars made on 11th November. Accordingly the respondent's application to strike out the appellant's claim for non-compliance with the tribunal's order would have failed. Had he known that the respondent's application was to strike out the claim he would have attended the hearing on 2nd December, but since he did not have that knowledge he did not attend.[25]Turning to the tribunal's powers to dismiss the Originating Application for non-appearance under Rule 9(3) he submits that there was a difference in treatment by the tribunal between the parties. Whereas the respondent's application of 25th November was listed for hearing as a preliminary issue, his own applications dated 23rd November were, by the tribunal's letter of 25th November, simply to be made at the hearing. They were not treated as "preliminary issues". His applications for further and better particulars and discovery by the respondents had been turned down; their applications against him had been granted.[26]Mr Okolo contends that the tribunal failed to consider written answers furnished to the tribunal pursuant to Rule 4(3). He referred to the further and better particulars of the Originating Application which he had served on behalf of the appellant. We pointed out the distinction between further and better particulars served under Rule 4(1)(a) and written answers under Rule 4(3). No order had been made under Rule 4(3) in this case.[27]Alternatively he submits that the tribunal's order dismissing the Originating Application under Rule 9(3) was a perverse exercise of discretion. He relied upon the speech of Lord Wright in Evans v Bartlam [1937] AC 473 , 486, where he said:
"It is that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction, unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that, if a judge had jurisdiction, and had all the facts before him, the Court of Appeal cannot review his order, unless he is shown to have applied a wrong principle. The Court must if necessary, examine anew the relevant facts and circumstances, in order to exercise by way of review a decision which may reverse or vary the Order. Otherwise, in interlocutory matters, the judge might be regarded as independent of supervision. Yet an interlocutory Order of the judge may often be of decisive importance on the final issue of the case, and may be one which requires careful examination by the Court of Appeal."
[28]Finally, when asked why no application for review was made under Rule 11(1)(c) of the Employment Tribunal Rules of Procedure (decision made in the absence of a party) he said that he did not think that an application for review could be made alongside an appeal to the EAT.[29]In response, Mr Cramsie submits that even if Mr Okolo did not receive a copy of the respondent's solicitors' letter of 25th November, that was no reason not to turn up for the hearing on 2nd December. On the contrary it was essential to do so. The date had been fixed since 12th August; no stay had been granted; both the appellant and the respondent's applications were to be heard on that day, followed by the merits hearing. No good explanation or excuse has been put forward for their non-attendance.[30]It was open to the appellant to apply for a review under Rule 11(1)(c). The fact that an appeal was also launched does not prevent such application being made. Indeed, we observe, the time for making an application for review had expired before the second notice of appeal was lodged.[31]In the absence of a review application this EAT must judge the tribunal's decision on the material before it on 2nd December. At that stage no explanation was provided to the tribunal for the absence of the appellant and her representative.[32]As to the tribunal's exercise of discretion it cannot be said to be perverse, particularly in light of the procedural history of the matter to which the tribunal referred in their summary reasons.[33]In short, there are no grounds under the threefold test adumbrated by Wood J in Adams and Raynor v West Sussex County Council [1990] IRLR 215 for interfering with the strike out order.[34]In our judgment Mr Cramsie's submissions are plainly correct. We would make the following observations:(1) Mr Okolo holds himself out as a skilled adviser, competent to represent the appellant in these tribunal proceedings. The appellant is fixed with the conduct of the proceedings by her adviser.(2) We find it beyond belief that Mr Okolo was unable to obtain a copy of the respondent's' solicitors' letter of 25th November before the hearing on 2nd December, either from the tribunal or the respondent's solicitors.(3) Even if that was the case, there is no basis upon which he could fail to advise his client to attend the hearing on 2nd December and attend himself in circumstances where that hearing had been fixed since 12th August; his application for a stay had been refused; his own applications were to be heard on that day; so too was an application by the respondents which, on his case, was a mystery to him; thereafter the case was to proceed to a merits hearing.(4) It is no answer to say that notice given under Rule 6(2) was defective. If that is so, he must attend the hearing to argue the point.(5) In the circumstances no good excuse for the failure to attend is made out now, and no explanation was given to the tribunal then.(6) The unexplained non-appearance by the appellant and her representative on 2nd December was all of a piece with the previous conduct of the appellant's case. At the first hearing a costs order was made against the appellant because her representative had failed to identify the issues in the claim. There was a history of simply ignoring correspondence from the respondent's solicitors. The tribunal was plainly, in our judgment, entitled to dismiss the claim under Rule 9(3). The fault for that unhappy state of affairs lies entirely with the appellant and more particularly with her representative. It follows that the second appeal is dismissed. The first appeal[35]It follows from our decision in the second appeal that the first appeal is rendered academic. It must also be dismissed. Costs[36]After we had announced our decision in these appeals Mr Cramsie applied for the respondent's costs in the appeal on the grounds that the appellant, and more particularly her representative, was guilty of unreasonable conduct in bringing or conducting these appeal proceedings. (EAT Rule 34(1)). He submitted that the proper course would have been to apply to the tribunal for a review under Rule 11(1)(c) of the Employment Tribunal Rules, although he submits that on the facts such an application would have been bound to fail. Instead, the substantive second appeal was launched and pursued with no prospect of success. At the directions hearing held on 22nd January 1999 Morison J expressly warned the appellant, then represented by Mr Okolo, of the difficulty in appealing against a tribunal's exercise of discretion; that he formed no view as to the merits of the appeals and that he made plain that the question of costs may fall for consideration at the hearing of the appeal.[37]Nevertheless, the appellant persisted in these appeals with the result that the respondents have been put to considerable expense in defending them. Mr Cramsie has put before us an itemised bill of the respondent's costs in the appeals totalling £4,213.55.[38]In response, Mr Okolo submits that it was not unreasonable to pursue these appeals to a conclusion. No order for costs should be made.[39]We think it appropriate to make some observations on the growth in representation by self-styled employment consultants both before Employment Tribunals and the EAT in the context of this particular case.[40]It has always been the position that Legal Aid has been unavailable for representation before Employment Tribunals. No doubt when the tribunal system was originally set up with a view to swift and informal resolution of a very limited range of employment disputes it was not thought necessary for parties to be legally represented. 35 years on that original ethos has changed. Employment Tribunals work to a set of procedural rules; the plethora of employment rights which have grown over the years has led to a wealth of authority, both domestic and European. In these circumstances the task for the lay person in presenting his or her own case is a daunting one.[41]That simple fact has opened up a market for unqualified and unregulated representatives to offer their services to litigants before the Employment Tribunals. Take Mr Okolo. He is part of an organisation called Community Advocacy and Outreach Consultancy. He tells us that that organisation operates on a "no win no fee" basis. It provides a service to litigants, like Mrs Ben-Edigbe who could not otherwise afford professional representation by lawyers. In that sense, it provides a potentially valuable social service. Mr Okolo tells us that he is a graduate of both Hull and London universities; he has studied labour law; he has personal experience of litigation to the House of Lords. However, he has no formal training in the practice and ethics of law.[42]Legal Aid is available on appeal to the EAT, but limited to the usual qualifications as to merits and means. On the second count alone Ms Ben-Edigbe failed to qualify. We would add that had she not been disqualified on that ground she would probably have failed on the merits grounds also.[43]In these circumstances the appellant put her faith in Mr Okolo. With nothing to pay unless she won her case, what did she have to lose? The sad history of this case answers that question.[44]First, we see from the bundle of correspondence exhibited to Mr Hart's affidavit that by faxed letter dated 10th August 1998 to Mr Okolo, two days prior to the first hearing, the respondent's solicitors drew attention to an offer made to settle the appellant's claim in the sum of £2,500, originally put to the appellant via ACAS on 6th August. The offer was said to be without admission of liability but in the interests of saving costs, and was to remain open until noon the next day.[45]We enquired of Mr Okolo what steps had been taken to consider that offer. His reply was that he did not take a view either way. He could not advise his client on the offer without reference to ACAS. The time-scale was too short. It was not right that the respondent's solicitors should, on the one hand be threatening to apply for an order for costs (their letter of 7th August) and then by making a time-limited offer. So the opportunity passed.[46]On 12th August the appellant was ordered to pay costs of £250 because her representative had failed to put her case in order.[47]On 2nd December her case was dismissed for non-attendance, a tactical decision taken by Mr Okolo which can only be described as disastrous.[48]Thereafter this appeal was launched and pursued, in our judgment, wholly unrealistically.[49]It follows that we have considerable sympathy for the appellant. She had been badly served by her representative. What redress does she have? The simple answer is none.[50]Whereas a solicitor or barrister is subject to the complaints procedure and disciplinary rules of his profession, Mr Okolo is answerable to no regulatory body. Whereas a solicitor or barrister must carry professional indemnity insurance, Mr Okolo and his organisation, he tells us, has no such cover.[51]In these circumstances there is a temptation to exercise our discretion in favour of refusing this application for costs. The appellant has lost any chance of success in her claim, whether by compromise or by decision of the Employment Tribunal; she has already suffered one costs order made against her by the Employment Tribunal. She has no realistic avenue of complaint against her adviser who had brought her to this pass. Ought she to be visited with yet further costs?[52]To answer that question we must turn to the position of the respondents. We are told that they are a non-profit making health care provider. Any respondent facing a complaint to the Employment Tribunal, particularly one which includes allegations of race and sex discrimination, is entitled to treat it as a serious matter and to resist it with the assistance of professional advisers. That is an expensive and time-consuming business. Sometimes, a respondent may take a commercial view of such litigation and seek to negotiate a settlement even although the claims are denied. That is what happened here. However, the offer to compromise the claims does not appear to have been properly considered by Mr Okolo. He allowed the opportunity to pass. Consequently the respondent was saddled with the costs of continuing to resist the claim.[53]After the complaint was dismissed this appeal was lodged and pursued. We accept Mr Cramsie's submission that the appellant's conduct in pursuing this appeal, particularly after the costs warning given by Morison J on 22nd January 1999, has been unreasonable within the meaning of Rule 34(1). In these circumstances we are satisfied that an order for costs is appropriate in this case.[54]We should have carefully considered making an order for costs against the appellant's representative. However, Mr Cramsie accepts, we think, correctly, that the EAT has no power to make a wasted costs order against a party's representative equivalent to such orders available to the ordinary civil courts.[55]In these circumstances the order will be made against the appellant, subject to consideration of her means.[56]We are told that the appellant has now obtained fresh employment as manager of a nursing home, earning £28,000 per annum. She is responsible for the care of her two children following her divorce and her mother also lives with her. She has a mortgage on two houses.[57]In these circumstances we have concluded that the proper order is for the respondent's costs in the appeal in the sum of £1,500 to be paid by the appellant. Leave to appeal[58]Following the oral announcement of our decision in the appeals Mr Okolo promptly applied for leave to appeal to the Court of Appeal. For the reasons which we have now given in full we consider that such further appeal has no real prospect of success. Leave is refused.[59]For the avoidance of doubt we shall not give leave to appeal against our Costs Order, again for the reasons which we have given.