Ben-Edigbe v Nuffield Hospital [1999] UKEAT 1406_98_2201

EAT
Ben-Edigbe v Nuffield Hospital
[1999] UKEAT 1406_98_2201 · 1999-01-22
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is a directions hearing to determine how these proceedings should first be handled by the Employment Appeal Tribunal. There are currently two appeals in relation to the same piece of litigation. Ms Ben-Edigbe has brought proceedings against the Nuffield Hospital, her former employers, alleging a number of different complaints: discrimination, unfair dismissal and redundancy selection which was unfairly done, together with a claim for breach of confidentiality.The case was listed for hearing and came before an Industrial Tribunal on 12 August 1998. For lack of time, the Tribunal proceedings could not be completed on that day and the Tribunal gave certain directions to enable the case to proceed in the future and in a decision which was accompanied by extended reasons and dated 20 August 1998, the unanimous decision of the Tribunal was that the hearing was adjourned to be resumed on 2 and 3 December 1998 and that the Industrial Tribunal did have jurisdiction to consider the complaints of the Applicant, even though they had been presented out of time but that the Applicant was ordered to pay the employer's costs fixed in the sum of £250 for the reasons set out in paragraph 7 of their judgment. That decision was not the subject matter of an appeal.Between 12 August and the date when the matter came back on 2 December, there was correspondence between the parties including a request for Further and Better Particulars of the complaint which was being made. That in turn led to an Order for Particulars being made, the validity of which may involve an issue to be resolved. That Order was made on 11 November 1998. When the hearing came back before the Tribunal on 2 December 1998, neither the Applicant nor her representative, Mr Okolo, presented themselves. The Tribunal having looked at all the material which was provided to them came to the conclusion that the claim should be struck out. They said this:
"It is unreasonable conduct of the proceedings not to respond to correspondence and that, coupled with the non-appearance of the Applicant or her representative at this hearing leads this Tribunal to conclude that the Applicant has failed with reasonable diligence to prosecute her claim. Accordingly, that claim is struck out."
What then happened was that there was an appeal made against the Order for Particulars which the Tribunal had required and subsequently an appeal has been filed with the Employment Appeal Tribunal (which I do not have a copy of, but I am told by Mr Okolo that one was filed) against the Industrial Tribunal following the hearing on 2 December, the decision being sent to the parties on 11 December 1998.What should now happen to those two appeals? It seems to me perfectly clear that the appeal against the Order for Further and Better Particulars is moot if the proceedings were properly struck out by the Industrial Tribunal. Accordingly, the appeal against the decision which was sent to the parties on 11 December 1998 should be heard and determined first. If that appeal is dismissed, then the appeal in relation to the Further and Better Particulars will be moot and will be dismissed. If on the other hand the appeal against the decision of 11 December 1998 is upheld, the EAT will consider the merits, if any, of the appeal against the Order for Further and Better Particulars which was made and whether that Order was lawfully made.The question then arises as to whether it would be sensible to list these appeals for a preliminary hearing or whether they should move straight into a full hearing. It seems to me having reviewed the matter that in a sense this is almost an interlocutory appeal which should be heard and determined as soon as possible. Putting it into the preliminary hearing stage might delay justice being done between the parties. Accordingly I direct that this be listed for a full hearing in relation to both appeals but that the appeal in relation to the decision of 11 December should be heard and determined first. Mr Okolo objected to the case being sent straight into the full hearing on the basis that he considered unnecessary costs might be incurred as a result of it but he maintains that he has arguable points of law which he maintains would persuade the Employment Appeal Tribunal at a preliminary hearing to send the appeal for a full hearing. Accordingly, it seems to me that it would be wrong for us to order that it should go to a preliminary hearing stage which will simply delay the proceedings in the end.I made it plain that I form no concluded view about the merit of these appeals but I would respectfully point out to the Appellant and her adviser that appeals in relation to interlocutory decisions such as whether Further and Better Particulars should be ordered or not, are notoriously hard to overturn in the Employment Appeal Tribunal because such decisions are essentially the exercise by the Tribunal of a discretion which is a wide one conferred on the Tribunal as the Tribunal of fact in charge of the management of the case.In relation to the decision to strike out, again, that is the sort of judgment which falls for the exercise of a judicial discretion by an Industrial Tribunal and again, is the sort of appeal which is hard to maintain simply because it is for the Industrial Tribunal to exercise its discretion and not for the Employment Appeal Tribunal so to speak, to second guess that exercise.Accordingly, I made it plain that the question of costs may fall for consideration at the hearing of this appeal and Mr Okolo will be aware of our powers under the Employment Appeal Tribunal Rules to that effect. I make this statement without prejudice to the merits of the appeal which I have not sought to investigate. If it turns out that there is an arguable point even if it fails, then of course the Employment Appeal Tribunal will not exercise its discretion to order costs, but I think it right to draw attention to our powers at this time. I give these directions. It will be listed as a Category B case. My estimate is that it will take no more than 1 hour to dispose of