MR R S PYBUS v MR G MILTON-DAVIES [1999] UKEAT 1436_98_1904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1436_98_1904Case No Appeal No. EAT/1436/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R S PYBUSAPPELLANTMR G MILTON-DAVIESRESPONDENT
Before
Mr Justice MorisonDate 19 April 1999
[1]APPEARANCES For the Appellant The Appellant in person MR R PYBUS MESSRS ROY PYBUS Solicitors 254 Smithdown Road Liverpool L15 5AH For the Respondent THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This case has something of a history to it. On 21 July 1997, a Mr Milton-Davies who is the Respondent to this appeal, presented an Originating Application against his former employers, Mr Pybus, who is a solicitor in practice under his name. Those claims were dealt with by the Tribunal on 5 November 1997. On 17 November 1997, Mr Pybus presented his own complaint against Mr Milton-Davies, alleging that he had sustained damage arising from breaches of contract by the employee and including matters of gross misconduct. The time for presenting that complaint expired on 5 September 1997 and therefore the complaint was out of time. On 6 January 1998, the written decision in relation to Mr Milton-Davies's claim was sent to the parties, and on 9 February Mr Pybus's claim was listed for a preliminary hearing to determine whether time should be extended for it to be heard by the Employment Tribunal.[2]A decision was sent to the parties on 12 March 1998 directing that the preliminary hearing as to whether Mr Pybus's complaint was presented in time, be adjouned because by then Mr Pybus had presented an appeal to the Employment Appeal Tribunal against the Mr Milton-Davies decision, so the application was that the proceedings should be adjourned until after the EAT had ruled on the matter.[3]In its decision, agreeing to postpone the issue as to whether Mr Pybus's complaint was presented within time and if not, whether time should be extended, the learned Chairman noted this:
"If Mr Pybus's appeal is successful, it seems to me almost inevitable that the Employment Appeal Tribunal will direct that the case be referred to a differently-constituted Tribunal. It is sensible that if the first claim is to be further litigated it should be combined with the second claim. Mr Pybus accepts that if the Employment Appeal Tribunal rejects his appeal then his employer's claim must fail. In these circumstances, there seems to me to be merit in adjourning this application and all further consideration of Mr Pybus's claim, until the appeal in the first claim has been determined by the Employment Appeal Tribunal."
[4]The claim was considered by the Employment Appeal Tribunal on 15 June 1998 and the judgment in short form was sent to Mr Pybus on 16 June with reasons sent on 1 July 1998. An application for leave to appeal from the Employment Appeal Tribunal was received and his application was rejected. It was noted, accurately or not, that time for appealing had expired on 14 July 1998. Fourteen days later, on 12 August 1998, Mr Pybus invited the EAT to review its decision and at the same time wrote to the Civil Appeal Office of the RCJ. It is apparent that Mr Pybus's letter to the Civil Appeal Office was not an application for leave to appeal, and it would appear that his application for leave to appeal was out of time.[5]The learned Chairman then dealt with the various steps that had been taken to try and get the matter before the Court of Appeal in the decision which is under appeal to us, which was sent to the parties on 8 October 1998. The next relevant date is 18 November 1998 where the single judge, Lord Justice Beldam, refused on paper the application for leave to appeal on the grounds that the appeal to the EAT against the decision of the Chairman of the Industrial Tribunal in the exercise of his discretion raised no question of law. The EAT held that the Chairman had not misdirected himself in any way. The proposed grounds of appeal do not raise any point of law.[6]The Appellant, Mr Pybus, exercised his right to have a leave hearing, and that matter came before the Court of Appeal before Lord Justice's Peter Gibson and Henry on or about 11 February 1999, and the Order which was made following that hearing was that having read the summons of 14 September 1998, filed by the Appellant by way of an ex parte application seeking leave to appeal, and upon hearing Mr Pybus, it was ordered that his application for leave to appeal be refused.[7]Mr Pybus has explained to us that he has been in correspondence with the Court of Appeal about the hearing which he had. It is his contention that the Court of Appeal indicated that the approach taken by the Employment Appeal Tribunal was wrong but that for other reasons the application for leave should be refused. It is his belief that what the Court of Appeal will or might say in their judgment will or might be of assistance to the Employment Appeal Tribunal when considering this particular appeal. As I understand Mr Pybus's position, the statement by the Employment Tribunal in paragraph 10 of the decision under appeal, namely that there was a concession made by Mr Pybus that if the decision in Mr Milton-Davies's case stands his own claim must fail is not incorrect, but he does say that the proceedings involving Mr Milton-Davies are not fully at an end because of the correspondence taking place with, and what took place at the hearing before, the Court of Appeal.[8]We have not been provided, because Mr Pybus has not been given, a copy of the Court of Appeal's judgment, if there is one when leave was refused on 11 February 1999. So Mr Pybus invites us not to consider the present appeal until after the Court of Appeal proceedings have finally come to an end. We are not prepared to accede to Mr Pybus's submission in that regard. If it should transpire as a result of anything that the Court of Appeal have said, that the EAT or the Employment Tribunal should consider the matter further, then an application may be made for us to review our decision.[9]We do not understand how the Court of Appeal could be suggesting that there is further work to be done by the Employment Appeal Tribunal in relation to Mr Milton-Davies's case against Mr Pybus, because so far as the EAT is concerned it is functus officio in relation to those proceedings, and it seems to us that unless the Court of Appeal allow an appeal against the Employment Appeal Tribunal's decision and remit the matter back either to this Court or to the Employment Tribunal, nothing further can be done by this court or by the Employment Tribunal in relation to Mr Milton-Davies's complaint. Accordingly we approach this appeal in the normal way, asking ourselves whether there is any arguable point of law for suggesting that the learned Chairman has erred in the way he has dealt with the question before him at the Tribunal held in Liverpool on 8 October 1998.[10]It seems to us that there is no arguable point of law. It is clear that Mr Pybus himself was of the view that unless he could open up the decision in Gary Milton-Davies's case, his own claim could not be sustained. It seems to us that that was a correct concession to make. Nothing that Mr Pybus has told us today suggests that that concession was wrongly made or was not intended. I think his real point as I have indicated, is that the proceedings in relation to Mr Milton-Davies are not yet at an end. We believe that at the present time there is nothing further to happen in relation to Mr Milton-Davies's case with which this court or the Employment Tribunal is concerned. In those circumstances, we regard the decision of the Employment Tribunal as fully justified. The Chairman was satisfied that Mr Pybus was acting frivolously and vexatiously or otherwise unreasonably in seeking to defend the application and that his complaint should be struck out and was minded to make an award of costs.[11]It seems to us that given the history of these proceedings, the learned Employment Tribunal Chairman was well placed to make a judgment as to whether the complaint was frivolous and vexatious and whether it should now be proceeded with. Accordingly, there being no point of law which is arguable, this appeal must be dismissed.