SURREY HEATH BOROUGH COUNCIL v MRS A E CROOKS [1999] UKEAT 152_99_2910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 152_99_2910

Case No Appeal No. EAT/152/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SURREY HEATH BOROUGH COUNCILAPPELLANT

MRS A E CROOKSRESPONDENT

Before

Mr Justice Holland Mrs T A Marsland Mr R N Straker

Date 29 October 1999

[1]APPEARANCES For the Appellants MR P EDWARDS (of Counsel) Instructed by: Mr R J Ivory Borough Secretary & Solicitor Surrey Heath Borough Council Surrey Heath House Knoll Road Camberley Surrey GU15 3HD For the Respondent MS I OMAMBALA (of Counsel) Instructed by: Mr J Clinch Legal Officer UNISON 1 Mabledon Place London WC1H 9AJ MR JUSTICE HOLLAND : There is before us an application made pursuant to the Employment Appeal Tribunal Rules, Rule 26, which specifies:

"… if any party fails to comply with an order or direction of the Appeal Tribunal, the Tribunal may order that he be debarred from taking any further part in the proceedings, or may make such other order as it thinks just."

On 10th May 1999 this tribunal made an order in this matter providing that the parties exchange and lodge with the tribunal copies of their skeleton arguments not later than 14 days before the date of the full hearing to be fixed. In the event, the respondent's skeleton argument was not lodged at all with the tribunal prior to the hearing, and we have only had sight of it this morning after the hearing had begun. It is in those circumstances that Mr Edwards, for the appellants, submits that the respondent should be debarred from taking any further part in the proceedings.

[2]That is a bold submission, but it is one to which we have given anxious consideration because this tribunal takes very seriously the matter of skeleton arguments, just as it properly takes seriously compliance with its orders. Before this matter concludes, we shall want some more help as to what has gone wrong. What we have learned so far is that Counsel was instructed on Monday, in the course of the week Counsel has had her own other commitments and problems and, for her part, has been unable to produce a skeleton argument until, I gather, yesterday. For that, she has properly and fulsomely apologised.

[3]That apology only goes part way. What we really need is an explanation, which we should like before this matter finally concludes as to why between 10th May 1999, and the beginning of this week nothing was done about putting together any skeleton argument at all. It is that the real burden of the problem and Counsel's activities this week falls into comparative insignificance when stood along side it.

[4]We turn then to how we are going to deal with the matter. We are going to deal with it in this way.

[5]In paragraph 2 of the skeleton argument Ms Omambala submits that the tribunal arrived at an appropriate findings of fact and proceeded on the basis of proper legal principles and the tribunal applied those principles to the facts to be found. That is the case that Mr Edwards plainly came to deal with, as indeed, his own skeleton argument bears witness. We will certainly allow the respondent to respond on that particular matter. Although we shall have to play it a bit by ear, we shall be very reluctant to allow arguments to be addressed or cases to be cited that were not relied upon by the tribunal, were not part of the tribunal's decision. The order we make is a partial one. We have explained the nature of it, we are not debarring the respondent from upholding the tribunal's decision on that basis first set out in paragraph 2 of the skeleton argument and, insofar as that particular point is developed in the balance of the skeleton argument. We are influenced in making this decision by having our own perusal of the decision, which shows that it is forensically bold and we are going to need help from both sides as to the legal issues that plainly arise from it.