Danzas (UK) Ltd v. Gibby [1999] UKEAT 95_99_0502

EAT

Danzas (UK) Ltd v. Gibby

[1999] UKEAT 95_99_0502 · 1999-02-05

MR JUSTICE CHARLES: The Appellant is the employer and the appeal is against a decision of the Employment Tribunal in Stratford to allow the employee to rely on the particulars which were served out of time and also to add an additional claim for breach of contract.

Briefly, the background is that at an early stage of these proceedings, the company sought adjournments from the Employment Tribunal which were refused. Those were sought on the basis of the availability of certain individuals dealing with the case, and it is fair to say that the Employment Tribunal simply refused those and the company assert through their representative today that that demonstrates that the Employment Tribunal took a strict line as to its time limits and procedures.

There then followed a preliminary hearing at which the company sought to have the case disposed of on the basis that the last act of racial discrimination alleged, was outside the relevant three month statutory time limit. They failed in that application. At the same time we think, on 23 October, directions were then given by the Employment Tribunal as to the particularisation of both the case as to racial discrimination and the inclusion of a case based on sex discrimination: it having been determined at that preliminary hearing that it was appropriate to add the sex discrimination case, largely on the grounds as we read the Extended Reasons that the matters alleged in the handwritten particulars attached to the Originating Application covered both claims but they could be specified more clearly and more succinctly. In particular, the identification of omissions to act as opposed to positive actions, could be better particularised.

Those directions are contained in a letter dated 23 October which contains a warning towards the end of the letter at paragraph 3(ii) in these terms:

"Failure to comply with any order of the Tribunal may result in the Originating Application/Notice of Appearance being struck out in whole or in part before or at the hearing and the proceedings dismissed or the respondent being debarred from defending altogether."

What then happened was that the adviser of the employee, who like the adviser of the employer is a skilled adviser, wrote on two occasions seeking an extension of time for the service of the relevant particulars, and was granted those extensions. In one of the letters granting an extension, it was made clear that it would be unlikely that a further extension would be granted and the parties attention was drawn to the penalties attached to the original Order.

In the event, the extended time limit was not met by a few days. The adviser of the employee, very properly "put his hands up" to that completely and took the entire blame for it. The Tribunal was then faced with the question as to whether or not it should allow the particulars to stand, notwithstanding that they were served outside an extended time limit, which was not one based on an "unless order". And also whether it should allow an application which came with those particulars to add an additional claim based on breach of contract.

When that situation had been reached, the employers made an application by letter, as we understand it, to the effect that the whole claim should be struck out, and not simply that the particulars should not stand, or the additional amendment should not be allowed. The Tribunal was then faced with a decision as to whether or not to strike the whole claim out, or not to allow the particulars to stand and not to allow the amendment as to breach of contract. In deciding those issues the approach the Tribunal had to adopt in the exercise of their judicial discretion is set out in the Selkent case which involves the balancing of prejudice or injustice that might be caused to the parties. They were therefore faced with a situation that the Tribunal had a claim before it in time and the problem was that the particulars had not been filed within the extended time limits in an Order. Breach of the time limits in order for directions is a serious matter for the Tribunal to take into account, but it is only one of the matters for them to take into account. The overriding consideration is where does the balance of prejudice or injustice lie. It is quite clear that that was the approach taken by the Employment Tribunal in their letter of 6 January, they say:

"1. The Chairman does not order the originating application be struck-out. Whilst the Applicant's representative is in admitted default it is not so serious as to justify such a drastic step. No material prejudice to the Respondent was thereby caused."

That was an exercise of judicial discretion. What is urged upon us is in fact, that there was in reality, no discretion to be exercised. It was submitted that the time limits are there to be observed, with which we agree and therefore it was submitted if they are missed because of the fault of a skilled adviser the claim or the late particulars thereof should be struck out without considering and balancing other factors.

In our judgment, that is a completely hopeless approach to an attack on the exercise of the judicial discretion vested in the Employment Tribunal. The appeal does not reveal any error of law or approach by the Tribunal. Further we would add that in our judgment the decision of the Chairman of the Employment Tribunal in this case, was plainly and obviously right. It is difficult to identify any prejudice suffered by the Respondents, notwithstanding that it is clear that the employee's representative was at fault. For those reasons, we dismiss this appeal.

Costs of this Appeal

A letter has been handed up to us which was written before this appeal was heard, on a without prejudice save for costs basis, making the point that in the grounds of appeal no error of law was identified and making the point that the Tribunal below was exercising a discretion, in all the circumstances of the case, one of which was the missing of the time limit.

It is impossible therefore to say that the issues were not known to the company and its adviser before they came before us this morning. In our judgment, we are of the view that this appeal was unnecessary and improper and unreasonably brought. We do not think we have to define which of those heads it falls under.

In our judgment, it was from its outset, completely hopeless, because the letter of decision coming from the Employment Tribunal displays clearly, that the Employment Tribunal Chairman in exercising the discretion that he had was applying the right approach and reached a conclusion that was always unassailable in this Tribunal. This appeal should never have been brought. It seems to us that the reason it was brought was an unreasonable and improper attempt to get rid of the whole case in reliance upon a breach of a time limit, which was considered below by the Employment Tribunal in the exercise of their discretion, to in effect extend time and add the additional claim. We therefore will order pursuant to Rule 34 of the Employment Appeal Tribunal Rules that the company, that is the Appellant before us, does pay the employee's cost of this appeal. We will be minded to assess the costs unless an application is made that they should be taxed, that pursuant to Rule 34(2). We assess them at £200.