MR G NICHOLAS v DIRECTORS OF PLUMMERS RESTAURANT LTD [2000] UKEAT 1111_99_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1111_99_1310Case No Appeal No EAT/1111/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G NICHOLASAPPELLANTDIRECTORS OF PLUMMERS RESTAURANT LTDRESPONDENT
Before
Mr Justice LindsayDate 13 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) This is a further meeting for directions in the matter G Nicholas - v - Directors of Plummers Restaurant Ltd. It is now four minutes past two in the afternoon. The matter was listed to come on at 10.30 this morning. The person I would most expect to have in front of me is Mr Nicholas but he does not appear. There has been communication with him this morning, or at least with his telephone number, in that the usher in my court has rung up the number which the Employment Appeal Tribunal has for Mr Nicholas: it transpired to be an answering machine and there was no individual at the other end but the answering machine had then recorded a message from the usher that Mr Nicholas was to make contact with us. The usher left a name and number for Mr Nicholas to phone but nothing has been heard and there is no reason to suppose that Mr Nicholas has set off on the journey here and has for some reason failed to attend or arrive and I therefore have to go ahead without him.[2]I will need to go into the background to some extent. On 9 February of last year Mr Nicholas lodged an IT1 with the Employment Tribunal. In Box 1, which requires the complainant to give the type of complaint he wants to make, a large number of different types of complaint were written in:
"Unfair dismissal; victimisations; breaches of health and safety; breaches of my employment contract; breaches of employment laws, directors duties and responsibilities; breaches of human rights"
In Box 11, "Please give details of your complaint:
" Mr Nicholas said: "
Details of my complaints stated in a 15-page letter are attached together with this application form. More details will follow at a later date. Also, please see accompanying letter (one page) to the Industrial Tribunal office". And the broad nature of the main drift of the complaints can be seen from Mr Nicholas' letter of 9 February 1999 to the Employment Tribunal where he says:
"I would like to make the point that this situation is not the usual case where the employer is law-abiding and the employee has done genuine misconduct. This case is just the opposite. The employers are dishonest law-breakers who are maliciously staining and trying to destroy in the most damaging way, both professionally and personally, the honest, uncorruptable, law-abiding employee. The employers revenged themselves callously on the employee who was a victim of their fraud, exploitation, deceits and lies for 20 years. They now added insult to injury by labelling their victim unjustly with gross misconduct because he had exposed their criminal wrong-doings and because they couldn't turn him into a silent, obedient collaborator"
[3]Spread over two days in 1999, on 30 April and 2 July, there was a hearing at the Employment Tribunal. In order that anyone should be able to see the nature of the decision which was sent to the parties on 21 July, some quotations from it would be appropriate. It was a decision of Mr C N Ingham, Ms J A Seaton and Mr B A Fitzpatrick sitting at London North.[4]The decision, which was unanimous, was that the Applicant's breach of contract claim against the Respondent failed and that the Applicant was not unfairly dismissed by the Respondent. It has, as it seems to me, every appearance of a balanced and careful judgment and it has a further merit - one that is particularly applicable to an appellant - that it is subdivided very sensibly into paragraphs and sub-paragraphs so that it would have been easy enough to identify precisely which particular parts were to be raised to be put in issue in an appeal or not.[5]Looking at just some of the findings, in paragraph 2(c) the Tribunal says:
"…it is therefore surprising that nothing exists in writing to confirm this profit sharing arrangement. We prefer the evidence of Mrs Plummer and Mr Yon on this issue."
They say in sub-paragraph (d):
"….We can find no evidence that Mr Nicholas reported these suspicions to the authorities. Indeed, he refused to inform the Tribunal whether he had made known his suspicions to the Police, Inland Revenue, Customs and Excise or Department of Social Security."
Sub-paragraph (i) he says:
"…We can find no evidence to substantiate Mr Nicholas' suspicions"
In sub-paragraph (n),which is divided into so-called "bullet points", one finds this (of Mr Nicholas):- " On 26 th September 1998 he falsified the attendance record of Daphne Wilmer Cohen to indicate that she had continued to work on Saturday 24 th September 1998 even though she had gone off sick. At about this time he gave the keys to a casual temporary porter, something which was in breach of usual procedures and a potential security risk.

(o) it says:

" As a result, on 2 nd October 1998 Mr Nicholas was given a final written warning."
In (q) it says:
"We are satisfied that the Respondent took all necessary procedural measures required in dealing with this dismissal."
In (r) it says:
"Thereafter, Mr Nicholas wrote various offensive and intemperate letters to the Respondent, some of which appeared to have been copied to the Tribunal."
In paragraph 5, where the heading is:
"5.

(b) reads: "

We are satisfied that the relationship between the Applicant and the Respondent had so deteriorated during 1998 that the necessary elements of trust and confidence between an employee and an employer no longer existed at the time the Respondent took the decision to dismiss the Applicant." And at 5(e): e) The Respondent carried out appropriate procedures in proceeding to dismiss the Applicant."[6]That is not intended to be a total summary of the findings of the Employment Tribunal but it does indicate the care with which the Tribunal went into matters, the clarity with which they expressed themselves, the ease of attacking one part as opposed to another, if that was sought to be done, and the difficulty an appellant against such a judgment is likely to have, at any rate where so many of the conclusions are matter of fact, and are difficult to be seen to have given rise to points of law.[7]That decision, as I mentioned, was sent to the parties on 21 July of last year. On 31 August a Notice of Appeal, of considerable length, some thirty five or more pages, was received. It included several allegations of bias and misconduct and prejudice on the part of the Chairman; so alleged Mr Nicholas. In the ordinary way, the Employment Appeal Tribunal required, in accordance with its Practice Directions, such accusations to be supported by an affidavit from the complainant. That was not done.[8]On 22 November of last year an Unless Order was made by the Registrar as follows: "UPON the failure of the Appellant to provide a sworn affidavit in accordance with paragraph 9 of the Employment Appeal Tribunal Practice Direction 1996 AND UPON the failure to respond with said affidavit in accordance with letters dated the 14 th day of October 1999 and the 5 th day of November 1999 IT IS ORDERED that unless an affidavit is received by the Employment Appeal Tribunal within 10 days of the date of this Order all allegations of bias or improper conduct contained in the Notice of Appeal will be struck out.[9]No affidavit was received and on 15 December 1999 an Order was made by the Registrar striking out such parts of the Notice of Appeal as related to bias, misconduct, or prejudice on the part of the Tribunal below. On 19 December Mr Nicholas appealed against that Order of the Registrar to me as President.[10]On 14 January I dismissed that appeal and gave directions as to the future conduct of the case. The Order of 14 January reads in part as follows:
"IT IS ORDERED that there be a directions hearing not less than 28 days from the date of this Order with only Mr Nicholas in attendance; in the meantime Mr Nicholas is to give very careful consideration to the point(s) of law he wishes to raise at the hearing of his Appeal" and the word "law" was underlined. "
IT IS ORDERED that Mr Nicholas may invite the President to allow his Notice of Appeal to be re-framed to identify point(s) of law and no more than that; the President will give assistance as he can" IT IS ORDERED that if at the Directions Hearing Mr Nicholas is unable to identify any point(s) of law in accordance with paragraph 2(3) of the Employment Appeal Tribunal Practice Direction, the matter will be adjourned to be re-listed for an inter partes hearing to determine whether the whole of the Notice of Appeal should be struck out in accordance with the Judgment of the Employment Appeal Tribunal "[11]I gave a judgment on that day, 14 January of this year, and set out the procedural history at perhaps greater length than I am now doing; I incorporate that judgment into this one and therefore I do not need to repeat all, at any rate, of what was then said. But I did deal with the position as it would be looking to the future. Having struck out the passages of the Notice of Appeal which were then in issue as being relative to prejudice, bias and so on, I turned to a different subject at page 8 of the transcript, letter G in the following way: "It cannot be over-emphasised that the Notice of Appeal must identify points of law to form the grounds of appeal. I have looked at the present Notice of Appeal, of course, chiefly to see how far it contains references to instances of bias and improper conduct alleged to have occurred on the part of Mr Ingham, but I have inevitably formed views whilst looking at it. As I mentioned earlier, a remarkable feature is that the Notice of Appeal is some three times longer than the decision which is under appeal. It seems to me at the moment to be a loose ramble through the evidence given or evidence which seems to have been given or is alleged to have been given. It is not a Notice of Appeal that simply identifies the points of law sought to be relied upon. What I am going to do is to direct that there should be a directions hearing, not earlier than 28 days after today, at which only Mr Nicholas need attend, and I shall invite Mr Nicholas in the meantime to give very careful consideration to what are the points of la w which he wishes to raise at the hearing of his appeal. It is quite unfair upon the Respondents and the EAT to require them to find their way through the 32 pages plus of the present Notice of Appeal trying to see where are any points of law identified. Practice Direction 2(3) emphasises that the Notice of Appeal must identify the points of law. If at this return date, not less than 28 days hence, Mr Nicholas wishes to invite me to allow him to reframe his Notice of Appeal in accordance with some new form of words which he shall have devised and which identify points of law and do no more than that, I shall welcome that and will try and give him such assistance as I can in concentrating the matter into points if law. But if, at that restored hearing, the matter is still a jumble of evidence as well as of possible points of law that might somewhere be found like gold among dross, well then, the risk will be, if that is the case, that I will adjourn the matter for an inter parties hearing at which both sides can address me and at which what will be at issue is whether the whole Notice of Appeal rather than just the small bits that I have been dealing with today, are appropriate to be struck out. 16 Accordingly, as I have already mentioned, I dismiss the appeal as to the striking out of the passages that are concerned with bias and prejudice on Mr Ingham's part. I add the striking out of that additional passage which I read. There will be, not less than 28 days hence, a directions hearing which Mr Nicholas alone need attend. He should concentrate on reformulating his Notice of Appeal in the interval. I will be very willing to entertain an application to amend the Notice of Appeal at that hearing, but if, by then, he has failed to comply with Practice Direction 2(3), well than, the risk will be at this next hearing I shall simply adjourn the matter for a hearing at which both sides address me and on which occasion what will be in jeopardy, so far as concerns Mr Nicholas, will be the striking out of the whole of the Notice of Appeal.[12]On 12 May the matter was back in front of me again. In my judgment I repeated the passage I have just read, and I continued as follows (I am looking at the transcript page 3, letter A, page 175 of my current bundle):- "5 So far as I can see Mr Nicholas has made no attempt to reformulate his Notice of Appeal. All that has been received from him are a number of letters and a six-page statement from a witness and, more recently, the request for an adjournment of 11 May 2000 and the letter of today's date, 12 May 2000. 6 The Notice of Appeal remains a quite hopeless jumble, a form which, were it allowed to go forward, would be unfair to the Respondents and to the Employment Appeal Tribunal. The need to reform it has been pointed out, as I have already mentioned, and time has been given for its amendment and nothing has been done. 7 Accordingly I shall now give a direction under EAT Rule 25 and it is to be noted, on Mr Nicholas' part in particular, that there is power in relation to a person who fails to comply with a direction given under Rule 25 to debar him or her altogether from further part of the proceedings. 8 So what I shall do is this. I shall adjourn this case for an inter partes hearing for as early a date as can be fixed but not earlier than 1 st June 2000. Mr Nicholas is to use all reasonable speed to delete from his Notice of Appeal, after its page 2, everything except grounds of appeal consisting of allegations of error of law strictly so-called and he is to re-serve the Respondents and the EAT with a Notice of Appeal so amended not later than 23 rd May 2000. That gives him an interval in which to reform his Notice of Appeal, even though he has already been clearly told by my earlier judgment that that was what needed to be done. He must recognise that if, when the matter returns, it can be shown that even by that date 23 rd May he has failed to comply with the direction I have given as to the reformulation of the Notice Appeal, he risks being debarred from taking further part in the proceedings altogether. It will be open to me, if that is the case at the inter partes return hearing, to dismiss the appeal. He must be aware of that risk. I hope it concentrates his mind to an adequate reformulation of the Notice of Appeal.[13]At the last minute on that occasion, on 12 May, some very late information came in which I dealt with in the judgment that I gave, but I do not think I need add to what I said then. The Order which followed that hearing said: "THE TRIBUNAL FURTHER ORDERS the Appellant use all reasonable speed to delete from his Notice of Appeal after page 2 everything except grounds of appeal consisting of allegations of law to be lodged with the Employment Appeal Tribunal and served on the Respondents not later than close of business on the 23 rd May 2000. THE TRIBUNAL DIRECTS that the Respondents do confirm whether or not they intend to be present at the relisted inter-partes hearing. If they choose not to attend they may submit written submissions no later than 14 days before the date of the relisted hearing for consideration by the Employment Appeal Tribunal and ensure a copy is sent to the Appellant. UPON the failure of the Appellant to comply with the directions of this Order the Respondents are at liberty to apply to have the Appellant debarred and to dismiss the appeal.[14]There has been no deletion, either by the 23 May or at all, served on the Employment Appeal Tribunal reducing the size of, and amending, the Notice of Appeal. The directions given have not been complied with by 23 May or at all. Employment Appeal Tribunal Rule 25 says:
"The Appeal Tribunal may either of its own motion or on application at any stage of the proceedings give any party directions as to any steps to be taken by him in relation to the proceedings" and that was the justification for the directions given on the 12 May; and then Rule 26 says: "
Default by Parties – ….. or if any party fails to comply with an Order or Direction of the Employment 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". There is no restriction in Employment Appeal Tribunal Rule 26 that suggests that latter part cannot be done by the Tribunal of its own motion.[15]There has been some communication received from Mr Nicholas before today. On 5 October, marked "For very urgent attention" and then it gives my name, there were some several pages of close typescript but it cannot begin to be described as a compliance with, or I would think, even an attempt to comply with, the reduction and concentration of the Notice of Appeal so as to contain only points of law which was required of Mr Nicholas. Insofar as it seeks to identify points of law, it simply or chiefly relies on so called "perversity", but without specifying which precise parts of the Decision were thus in jeopardy and the reasons for attack upon them, and I remind myself that that would have been an easier task than in most judgments, for the reason that I have given: namely that the judgment is carefully split into paragraphs and sub-paragraphs.[16]As it seems to me there is a failure to comply with the Directions given on 12 May of this year, which failure is totally unexplained, as also, of course, is Mr Nicholas' non-attendance today. There has been some communication from the Respondent, but not to any point that I need to draw to attention.[17]It is not lightly that I strike out the remainder of the Notice of Appeal, but there has been, as it would seem, persistent non-compliance, notwithstanding that ample time and reminders have been given to Mr Nicholas. I am comforted to some extent, in striking him out, in considering, as broadly as one can at this early stage in a prospective appeal, whether the appeal had any real prospect of success. It is not possible to conduct a thorough going examination of the merits with only the Notice of Appeal in front of one, but I am bound to say that such brief examination of the merits as is possible at this stage certainly does not suggest that, were the appeal to be struck out, Mr Nicholas would be losing anything that had any obvious prospect of success. There is also the technical difficulty in front of him, that it is not his employer that is the Respondent, but individuals who are directors of the Respondent, a point that seems not to have been drawn to attention previously.[18]As I say, it is some comfort to me that I cannot regard the Notice of Appeal as an instrument that was surrounded by any glittering prospects of the likelihood of success and that makes me rest easier upon my striking out the rest of the Notice of Appeal. Of my own motion, under Employment Appeal Tribunal Rule 26, I debar Mr Nicholas from taking any further part in the conduct of the Notice of Appeal of 31 August 1999 as amended and strike out that appeal.