Jones (t/a Jones Miller & Co) v. Clarke [1999] UKEAT 33_99_0202

EAT
Jones (t/a Jones Miller & Co) v. Clarke
[1999] UKEAT 33_99_0202 · 1999-02-02
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal against a decision of an Industrial Tribunal following a hearing at Bedford on 26 November 1998. The Tribunal's interlocutory order was set out in writing and promulgated on 30 November 1998. The Notice of Appeal in this case was dated 7 January 1999 and was received by the Employment Appeal Tribunal on 11th January 1999. This matter has been brought on for an early hearing because the Employment Tribunal have set three days aside for the determination of Mr Clarke's complaint which he has brought against his former employers, a firm of solicitors Jones Miller & Co and a named individual, Peter Bradley Jones.His IT1 was filed sometime in May 1998. The Respondent firm put in an answer making a number of serious allegations against Mr Clarke, who had been working for them in their legal practice, by an IT3 dated 9 June 1998. The Industrial Tribunal very sensibly held a directions hearing in this matter on 24 August 1998 when various orders were made. They are very detailed orders, requiring the solicitors to disclose a substantial amount of documentation which lies behind Mr Clarke's complaints and their counter-complaints.The original order was that the firm of solicitors, by the 19 October, furnish the Tribunal with replies, in the form of a schedule providing the appropriate information, to various questions. There was also an order that each party do by the 21st September disclose all other documents, and the matter then proceeded. The Tribunal were asked to consider again the previous order that they had made because the solicitors were finding it difficult to comply with the date, hence the hearing on 26 November 1998 to which I have referred where the Tribunal made the following orders: firstly the time for compliance with the order made on 24 August 1998 be extended to 5 January 1999, second that there be mutual discovery of all documents by 19 January 1999 and third, that witness statements be prepared in writing and be exchanged seven days before the date fixed for the hearing and six copies brought to the Tribunal on the first day. The Tribunal also ordered that the case be listed for three days on the 15, 16 and 17 February 1999 at 10 a.m. The learned Chairman went on to say "The parties having been consulted over listing these dates should now be regarded as a fixture which will only be vacated in the most exceptional and extenuating circumstances."No appeal was lodged against that order until a document was received here on 11 January 1999, within time but only just. Based upon the fact that a Notice of Appeal had been lodged here, we understand that the solicitors immediately applied to the Employment Tribunal for an adjournment of the fixture on the basis no doubt that the Employment Appeal Tribunal would take some time before it could consider the appeal, and pending the appeal it would be appropriate to adjourn. Very sensibly again, the Employment Tribunal refused that application.It is to be noted that the appeal which is lodged here is not against the substantive order which was made by the Industrial Tribunal but is simply made against the timescale for compliance with that order. The Notice of Appeal itself says this:
"The grounds upon which the appeal is brought are that the Industrial Tribunal erred in law in that the Chairman failed to consider the implications of the timing of the order, bearing in mind the Christmas recess and the size of the Respondents' practice in imposing draconian time limits are a denial to the Appellant's basic judicial rights in having adequate time to prepare for the trial."
Today Ms Willmot on behalf of the Appellants says that the learned Chairman, in the exercise of her discretion, failed to take account of the Christmas recess and the limited resources of the Respondents. In addition, she relied upon the fact that there had been a computer breakdown in the solicitors office and that there was a claim in relation to that which had only just recently been settled. It is significant we think that no mention of this was made in the Notice of Appeal and we were told by Mr Clarke and accept that the question of the computer breakdown was raised at the hearing in November when the solicitors recognised that there was nothing that was held on computer that could not be generated manually and therefore the fact that the computer had broken down would not prevent them from complying with the order. That is a more likely explanation as to why it was not contained in the Notice of Appeal than the suggestion that there was some kind of oversight on the solicitors part when they drafted the Notice of Appeal.It seems to us entirely clear on what we have been told that this appeal raises no point of law whatsoever and we regard it as a delaying tactic. It seems to us that if there had been a genuine difficulty in complying with the order, or that it was their view that the extended time was draconian as alleged in the Notice of Appeal, then the Notice of Appeal would have been filed weeks ago.We are concerned about the way in which this case is being dealt with by the Respondents. Mr Clarke is obviously anxious to avoid a trial by ambush. He points out that the solicitors are also in breach of the second order which was made in relation to mutual discovery of all documents by 19 January. The time is arriving for the exchange of witness statements and what concerns him is that at the hearing on 15 February, miraculously the documents will be produced which will embarrass him because he will need to make his own enquiries and he will not be able to deal with the case. We reassured him that the Industrial Tribunal would not be prepared to allow that to happen.It is clear that this case has been managed so as to avoid trial by ambush and it would be quite wrong for the Tribunal to permit the solicitors to behave in a way which actually created the very ambush which these orders were designed to avoid. Tribunals have wide powers to strike out claims and responses if they believe a party has been acting vexatiously or abusively in the proceedings and no doubt they will consider whether those powers should be exercised. That is entirely a matter for them and it will depend precisely on what happens between now and 15 February, the date fixed for the substantive hearing of this matter.For present purposes, we simply say that we dismiss this appeal. It was and always was a hopeless appeal. Mr Clarke has asked us to make an order for costs. We consider that the Appellants have acted unreasonably in advancing this appeal at all and by delaying putting in their Notice of Appeal and we are satisfied that we ought to exercise the discretion which we have in those circumstances. He estimates his costs to add up to £130 which will cover his travelling costs of a modest proportion together with the loss of his time attending this Tribunal. We make an order for costs and we assess them in the sum of £130 which will be now paid.