Goldman v North London College Of Health Studies & Anor [1999] UKEAT 791_97_0803

EAT
Goldman v North London College Of Health Studies & Anor
[1999] UKEAT 791_97_0803 · 1998-11-16

JUDGE PUGSLEY :

This is a case with a long and chequered history. The appellant was placed on special leave as long ago as 22nd April 1992. On 1st June 1992 he was suspended. On 8th June 1992 the appellant issued an Originating Application alleging racial discrimination over his suspension and/or being sent on special leave. On 23rd June 1992 the appellant was dismissed. Thereafter on 14th September 1992 the appellant presented a second Originating Application alleging both racial and sex discrimination. In September 1992 the appellant was made bankrupt. Thereafter the respondent issues High Court proceedings for the return of a motor vehicle. The appellant counterclaims for wrongful dismissal and a declaration that he was not dismissed. Proceedings alleging defamation were then commenced by the appellant against various parties. There were some nine writs in all and the substance of these allegations arose from statements taken by the respondents concerning the appellant's conduct and competence during his employment. The wrongful dismissal claim was struck out on 9th May 1996.On 12th February 1997 at an interlocutory hearing the Chairman of the Industrial Tribunal, Mr Flint, ordered that the Industrial Tribunal hearings should proceed. The appellant appealed against that decision which came before a division of the Employment Appeal Tribunal dismissing the appeal. In his judgment dismissing the appeal His Honour Judge Peter Clark set out the principal reasons for Mr Flint's refusal to adjourn the pending proceedings:(1) that the wrongful dismissal proceedings, which had influenced the Chairman's ruling that the Industrial Tribunal proceedings be stayed in March 1994, had terminated;(2) there would be no material findings of fact in the defamation proceedings to be tried by a judge and jury, which would bind the Industrial Tribunal, nor vice versa; and(3) there had already been considerable delay since these proceedings were commenced in 1992, and that the interests of justice now require that the Industrial Tribunal proceedings be heard.His Honour Judge Peter Clark then reviewed the various authorities on appeals against interlocutory orders citing Arnold J's citum in the case of Bastick v Lane [1979] ICR 778 , 782B-C and noted that it had been approved by Stephenson LJ in the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908 , 918. Having considered the various arrangements that the appellant had advanced the Employment Appeal Tribunal dismissed the appellant's appeal.It is against that backcloth that the present appeal against the decision of the Industrial Tribunal falls to be considered. Moreover, we should note that we, unlike the instant tribunal, have had the opportunity of seeing the issues which are raised through the prism of the urbane and sophisticated arguments of Mr Sean Jones who now appears for the appellant. We have little doubt that the appellant's case has been presented before us with an air of reasonableness which we suspect would not have been the hallmark of the way in which the appellant dealt with the matter at the hearing of the Industrial Tribunal.The appellant's attempt to prevent his case being heard on the 21st April 1997 had failed. It is therefore not surprising that any renewed attempt to secure an adjournment on the day of the hearing by the appellant would be viewed with quite proper scepticism. However, certain procedural matters still fell to be resolved. The appellant had requested a witness order in respect of a Mrs Corinne Mills. That request had been granted by Mrs Prevezer, an experienced Chairman, on 24th March. That was not actioned and no witness order was sent out. The appellant then made a further request for witness orders on 10th April. On 11th April Mr Flint gave instructions that the issue of witness orders should be dealt with on the date of the hearing. This information is contained in a letter from the Regional Chairman (at pages 62 and 63 of the EAT bundle). The Chairman in her comments (at page 29 of the EAT bundle) that she had no note of any discussion in respect of witness orders and had no independent recollection of any such discussion. However, it is clear from the Chairman's notes themselves (at pages 73 and 75 of the EAT bundle) the appellant was raising in some form the question of witness orders. In a subsequent communication dated 10th November the Chairman states her notes refer to Mrs Mills. Her note then goes on:
"I have no note or recollection of his saying other witness orders were to be considered. I had not picked up from the file that there were other witnesses requested. Mr Goldman did not ask me to deal with the issue. Had he done so I would have addressed the matter and may have made the orders. It would have influenced my decision as to whether to proceed that day or adjourn to the next to enable any witness orders to be served."
At the hearing the appellant applied yet again for a postponement of the case. The tribunal summarised the arguments he put forward in paragraphs 6 onwards and then in paragraph 11 of their decision stated:
"On being advised of the refusal to postpone the hearing, the Applicant stated that he was not in a position to proceed today and in the circumstances the Tribunal had no alternative but to dismiss the application for want of prosecution."
The respondents asked for costs and the tribunal decided to award costs against him making the following findings at paragraph 13 of the their decision:
"The Tribunal considered that the Applicant had shown that he had never had any real intention from the time of the interlocutory hearing held on 12 February 1997 to proceed to trial with the Industrial Tribunal case. He had in effect been time-wasting both the time of the Respondents and of the Tribunal."
In her comments on the appellant's affidavit Mrs Hill commented (at page 29 of the EAT bundle) in these terms:
"6. I am however conscious that Mr Goldman presented himself throughout the hearing on 21 April as [ a ] person who had not come to the Tribunal prepared for his case to go ahead. He had chosen not [ to ] bring any of the documents or bundles with him despite knowing that the Employment Appeal Tribunal had directed that the Full Merits Hearing should proceed on that day."
Although in paragraph 11 of the decision the tribunal stated that "it had no alternative but to dismiss the application for want of prosecution" in her communication of 10th November the Chairman states:
"The question of Mr Goldman being struck out was never raised. The decision of the Tribunal was that the case should proceed and Mr Goldman was asked to call his evidence. He refused and the case was dismissed as he had failed to call his evidence. Unfortunately I used the wording in rule 13(2)(f) which relates to a case struck out, but the decision was clearly given as there was no evidence on which we could find for the Applicant. He was present in person and therefore rule 9(3) did not apply requiring the Tribunal to look at the Originating Application before making the decision."
The evidence as to whether the issue of witness orders was raised and if so in what context is confused. It certainly does not feature in the decision as a matter which weighed with the tribunal. Further, the circumstances in which the order was made striking out the application is again muddled. Notwithstanding the terms of the decision, the Chairman has stated that the question of the action being struck out was never mentioned. The appellant does not recall ever being given any opportunity to show cause why the case should not be struck out. (See paragraph 23 of his second affidavit). A friend of his, a Mr Harvey Fifer, in his first affidavit deposes at paragraph 12 that he recalled the Chairman saying she was going to dismiss for want of prosecution but that she gave no warning that he should consider his position before dismissing the case. Mr Stephen Christopher Gummer, a most experienced employment lawyer, who was acting for the respondents, states at both paragraph 9.3 and 12.8 of his affidavit that the appellant was told that he had to proceed with his case and if he did not his claims would be struck out. It is no reflection on the integrity of any of those who have deposed as to their recollections or, in the case of the Chairman, given her comments, to say that it is almost impossible for us to decide to what extent the question of witness orders was raised or what exactly what was said about the striking out.Mr Jones argument is that the tribunal failed to comply with Rule 13(3) of the Industrial Tribunal Rules to which requires a party to be given an opportunity to show cause orally why the order should not be made. Certainly neither the decision itself, nor any of the Chairman's subsequent comments suggests this was done. Further, it is contended that the tribunal failed to consider whether grounds existed for concluding that "there had been a want of prosecution" in the light of the fact that due to an oversight the witness order for Mrs Mills had been applied for and granted, but had not been actioned, and the Chairman was unaware that a decision had been referring his other application for witness orders had been adjourned to the hearing.Mr Jones cites the case of Kelley v Ingersoll-Rand [1982] ICR 476 . In that case the employee sought to argue that an agreement had a particular meaning. The Chairman expressed a different view. The Chairman asked the employee to call his witnesses. The employee declined to do so. The Chairman adjourned the hearing until after lunch. On reconvening the employee still sought to argue the construction of the agreement. The Chairman required him to present his evidence, to state his case or to recall the employer's witnesses so that he could cross-examine them. The employee complained the Chairman was biased and he was not prepared to carry on with the case. The Chairman, with the consent of the lay members, dismissed the case for want of prosecution. The employee's appeal to the Employment Appeal Tribunal was allowed since the application could only be struck out for want of prosecution in accordance with the requirements of Rule 12(2)(f). It is correct, as Ms Romney for the respondents has pointed out, that at the time the regulation only provided for the written notice to be given and did not have the words contained in Rule 13(3) "but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an order to show cause orally why the order should not be made". Ms Romney's submission does not give full weight to the terms of the judgment of Browne-Wilkinson L at 480:"Mr Lawton suggests that the necessary power is to be found in rule 12(1). It is to be remembered that industrial tribunals are statutory bodies whose powers are exclusively conferred and regulated by statute. They have no inherent jurisdiction: any jurisdiction they have has to be found in their regulating statutory provisions. Were it not for the words, in rule 12(2)(f) "Subject to the provisions of these rules" we think it may well be that the tribunal had power to strike out an application for want of prosecution.

(f) "

Ms Romney in her most powerful argument to us has pointed out that the tribunal made very explicit findings that the appellant was deliberately seeking to ensure that the case should not proceed by a deliberate process of obsfucation and prevarication. We have little doubt that the appellant's attitude did give the impression that he was seeking to disregard the interlocutory order of Mr Flint, notwithstanding that the order had been the subject of an appeal which had been decisively rejected. Nevertheless, the power to strike out for want of prosecution can only arise if the requirement of Rule 13(3) is met. In the light of the comments of the Chairman and the general confused picture, we cannot be sure that they were met and we are bound to conclude that the order was made without jurisdiction.This case provides a powerful reminder of the value of the requirement that a party should be allowed the opportunity to show cause why the order striking out for want of prosecution should not be made. Litigants acting in person, and on occasion their representatives, sometimes have a plethora of issues which they want to raise. Sometimes such issues are only of marginal relevance. Occasionally they wish to argue matters which have already been determined against them. The lay litigants will have less experience in appreciating, when a point is being made whether it is falling on receptive ears. Ms Romney had reminded us that it is not for an Employment Tribunal to make out a case for the unrepresented litigant and it is not under a duty, of its own motion, to ensure every allegation in an Originating Application is dealt with unless expressly abandoned. She cites Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 , a decision of the Court of Appeal in which the judgment of Peter Gibson LJ makes it clear that the Industrial Tribunal Rules do not provide a source for such a duty. The power to strike out is a draconian one and before it is exercised then it is appropriate that the litigant should have his or her mind concentrated on the peril in which they stand. It may well be that if such a warning had been given Mr Goldman would have raised with greater emphasis the fact that he had not received a witness order in respect of one witness and his other application had been reserved to the hearing itself.We consider that there is some force in Mr Jones' submission that the tribunal was deflected from a proper consideration of the issues by allowing the respondents' representatives to set the agenda for the hearing. It is clear from the Chairman's notes of evidence (at page 69 in the EAT bundle) that although it was the appellant's application to adjourn, the tribunal turned to Ms Romney for an explanation of the issue. Mr Jones points out that as Morison J observed in Tchoula v Netto Foodstores (unreported) EAT/1378/96 , this may give the impression that the unrepresented party is at a disadvantage.Ms Romney has reminded us of those decisions in which the EAT despite an error of law can nevertheless uphold the decision. She cites such cases as Dobie v Burns [1981] IRLR 329 ; O'Kelly v Trusthouse Forte PLC [1983] IRLR 369 ; McLaren v NCB [1988] ICR 370 and Morgan v Electrolux [1991] IRLR 89 . She points out in Kelly v Ingersall-Rand the Employment Appeal Tribunal were only deflected from that course by the fact that the facts had not been established.Ms Romney has taken us through the chronology. She submits that the Industrial Tribunal made very clear findings throughout as to the appellant's intentions. She submits it would be a travesty to permit this action to continue some six to eight years after the matters complained of and after he has wilfully refused to proceed, notwithstanding the orders of the court that he should do so. She states that if the appellant had argued all the matters he has raised the tribunal would still have struck out his action. She suggests that the very process of applying for witness orders could be seen as part of a pattern of delaying tactics designed to secure the adjournment he had been denied.Ms Romney has made her points forcefully and, as Mr Jones himself concedes, his client may well have presented his case in an annoying way especially as his application for an adjournment was made after that decision had been tested on appeal. Yet Ms Romney's analysis ignores the fact that the witness order he had been granted had never been actioned and that the tribunal Chairmen had never considered the fact that there were still unresolved applications for witness orders.We can see no alternative but to allow this appeal. In our view we cannot proceed on the basis that the appellant was given an opportunity to show cause why the case should not be struck out for want of prosecution. In these circumstances we do not consider the tribunal had jurisdiction to make such an order. We do not consider that given the clear terms in which the decision is couched that the decision can be upheld on the basis that the tribunal did not mean to strike the case out; we consider from the affidavits that it is probable that whatever the Chairman intended that words were used to convey that meaning. In our view it would be inappropriate for us to find that, notwithstanding the error of law, we can say that the action should be struck out. In our view the case must be remitted for a rehearing on its merits by a freshly constituted tribunal. If the appellant continues to flout the ruling of the tribunal he will only have himself to blame and in saying this we are merely mirroring the warning that Browne-Wilkinson J gave in the Kelly case.We hope that the parties will now seek to agree a procedure for this case to move forward. In particular, we consider that it would be appropriate for the matter to be considered by the Regional Chairman for directions to be given, if they cannot be agreed, for the issue of the witness orders to be considered.In view of our decision on the principal matter of the appeal we allow the appeal against the order for costs to the extent of remitting the matter for further consideration in the light of subsequent events. We do not wish to take any step which would prevent a tribunal making an order for costs if it thought appropriate.