MR G F IMONA v LONDON BOROUGH OF WALTHAM FOREST & OTHERS [2000] UKEAT 1186_99_1002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1186_99_1002Case No Appeal No. EAT/1186/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G F IMONAAPPELLANTLONDON BOROUGH OF WALTHAM FOREST & OTHERSRESPONDENT
Before
Mr Justice Charles Mr P R A JacquesDate 10 February 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE CHARLES : We have before us today an appeal which has been listed as an interlocutory appeal. The parties are a Mr Imona and the London Borough of Waltham Forest & Others. On its face the appeal is against two decisions of an Employment Tribunal sitting at Stratford, in respect of decisions made by them on 27 August 1999 and 26 May 1999. The Extended Reasons in respect of the hearing held on 27 August 1999 were sent to the parties on 21 September 1999 and the Extended Reasons for the hearing on 26 May 1999 were sent to the parties on 30 June 1999.[2]The Notice of Appeal contains the following in paragraph 6:
"6. THE GROUNDS UPON WHICH THIS APPEAL IS BROUGHT ARE THAT THE EMPLOYMENT TRIBUNAL ERRED IN LAW IN THAT: and then the grounds are set out as: "
DETAILED REASONS TO BE SENT FORTHWITH AS SOON AS LEGAL AID FUNDING IS APPROVED. PLEASE NOTE THAT APPEALS FROM CASE NO. 3201173/98 AND CASE NO. 3202079/98 ARE OUT OF TIME DUE TO THE NOTICE OF REVIEW OF THE DECISION TO STRIKE OUT THESE APPLICATIONS, SENT TO THE APPLICANT ON 30 JUNE 1999, GIVING THE REVIEW DATE AS 27 AUGUST 1999." It is apparent from that that the grounds of appeal are not set out in the Notice of Appeal.[3]Shortly before today's hearing there has been communication between this Tribunal and Solicitors who had acted for Mr Imona in the past, a firm called Zoi & Co. They wrote to this Tribunal on 8 February 1999 in the following terms:
"We are advised by our client, Mr Godsend Fred Imona that he is unable to instruct us at this stage because of ill health. For that reason we request the hearing for 10th February 2000, be postponed and a new date set any time from 9th March 2000. We enclose herewith a copy of our client's medical certificate. We thank you for your prompt anticipated co-operation and look forward to hearing from you."
[4]The medical certificate is from a Dr Whiteford who practises from Grove Surgery in Walthamstow, it is addressed to the Clerk of the Court, Employment Appeal Tribunal, it is dated 7 February this year, it is entitled in Mr Imona's name and it says this:
"I have today examined Mr Imona who is suffered post viral [I think it is depression, the fax we have is cut off] depression and generalised arthralgia. He is unable to attend Court as from 10 February. However he should improve, making it possible for him to attend within two weeks."
[5]On 9 February this Tribunal responded to Messrs Zoi & Co in the following terms:
"I refer to the above matter and your letter of 08 February 2000. Your application was referred to the Registrar who directed that the matter remain in the list for hearing on 10 February 2000. You may, of course, wish to renew these submissions by way of preliminary point on this date."
We have made enquiries today and we have been told that someone at the office here spoke to the Solicitor involved at Zoi & Co and told them that their application for a postponement had been refused and they would have to deal with the matter today.[6]The date of the Notice of Appeal was 22 October 1999. The medical evidence enclosed with the letter from the Solicitors acting for Mr Imona deals only with an examination and therefore a period of illness very shortly before today's hearing and makes only the point that he would not be able to attend today. Messrs Zoi & Co have not explained why they were not in a position to obtain instructions from Mr Imona over the period from 22 October 1999 to today, or why it was not practicable for them or for Mr Imona himself to provide during this period the grounds upon which these appeals were brought.[7]We treat the application for a postponement as being before us now and we refuse it. We do so on the basis of the inadequacy of the medical certificate and the inadequacy of the explanation provided by the Solicitors and Mr Imona as to why they were not in a position to provide details of the grounds upon which they brought their appeal or to attend today. If Mr Imona was unable through health reasons not to attend, those representing him could have attended subject, of course, to legal aid funding but that is not put forward as a reason for their non-attendance.[8]In reaching that decision we have also had regard to the history of this matter as set out in the decisions of the Employment Tribunal to which we will now turn. The relevant decisions of the Employment Tribunal relate to three applications made by Mr Imona to the Employment Tribunal.[9]The first application is numbered 3201173/98 and was presented on 14 April 1998. In that application Mr Imona alleged racial discrimination and victimisation and, as can be seen from paragraph 11 of the Extended Reasons sent to the parties on 30 June 1999 that application contained very generalised allegations.[10]The second application made by Mr Imona is numbered 3202079/98 and was presented on 20 July 1998. In that application he alleged racial discrimination, victimisation and disability discrimination. An Order was made in August 1998 that Mr Imona do provide particulars in respect of both those applications and the matter came back before the Employment Tribunal on 26 March 1999 to deal with the lack of provision of particulars and the possibility of striking the proceedings out. In March the matter was adjourned to come back on for hearing on 26 May 1999. Paragraph 14 of the Extended Reasons sent on 30 June 1999, which record what happened when the matter was adjourned, is in the following terms:
"14. For the full terms of that decision, that decision should be referred to. However, the last paragraph of that decision which granted the postponement sought stated as follows: 'The Tribunal has indicated to the Applicant that on 26 May, (the date to which the hearing was postponed) whether he is represented or not, any further application for a postponement is unlikely to succeed in the absence of very special circumstances. The Applicant has indicated that he understands this'."
Notwithstanding that, when the matter came back on 26 May, an application for a postponement was made and that is dealt with in paragraph 16 of the Extended Reasons sent on 30 June 1999 which is in the following terms:
"16. It is already 13 months since the first Originating Application and 10 months since the second was presented. The Respondents still do not have sufficient information to enable them to know exactly the case which they have to answer and for example, to know exactly who they ought to interview to take statements for their defence to this case. Memories are likely to have faded already after that time and some of the matters referred to in the pleadings go back to dates much earlier than that. Memories will continue to fade."
[11]Paragraphs 19 to 22 of those Extended Reasons are then in the following terms:
"19. Miss Burnham, for the Respondents, has submitted that the Tribunal should strike out the applications under Rule 4(7) of the Employment Tribunal Rules of Procedure on the basis of non-compliance with the order for Further and Better Particulars. She submits further that the Tribunal should strike out these Originating Applications under the provisions of Rule 13(2)(e) and (f). 20. We are not convinced that there has been any conduct by the Applicant which would lead to a Tribunal striking out under Rule 13(2)(e). 21. Before a Tribunal strikes out an Originating Application for non-compliance with an order for Further and Better Particulars, it must be satisfied that there is a real or substantial risk that, as a result of the default, a fair trial will no longer be possible. Mr Glah submits that there is no evidence before us on this point. He is correct. We have heard no testimony on this point. However we have read the pleadings, we have seen the correspondence and the orders which have been made. We consider that we can draw inference from the general nature of the pleading and the passage of time that the delay which has taken place in particularising those allegations has created a real risk that a fair trial will not be possible. The Respondents still do not know the case they have to answer and in many cases the witnesses they will have to interview. 22 Miss Burnham for the Respondents further submits that the Tribunal should strike out for want of prosecution under Rule 13(1)(f). She submits first that there has been intentional and contumelious default. We do not accept the submission that the default has (sic) contumelious. Alternatively she submits that there has been inordinate and inexcusable delay on the part of the Applicant or his lawyers and that such delay gives rise to a substantial risk that it is not possible to have a fair trial of the issues or is likely to cause serious prejudice to the defendants. We accept the submission in all its features."
As can be seen from those paragraphs at the hearing on 26 May 1999 the Employment Tribunal considered the relevant rules, and having identified that the relevant notice had been given prior to those hearings (see paragraph 12 of the Extended Reasons) they reached conclusions that the lack of particulars and the delay would be likely to cause prejudice to a fair trial of those two Originating Applications.[12]We pause to comment that in our judgment that demonstrates that the Employment Tribunal applied the correct approach in law and reached a conclusion on prejudice which was one within the range of conclusions that was open to them.[13]It follows that the Employment Tribunal at that hearing on 26 May and in the Extended Reasons sent on 30 June 1999 dealt with the first two applications made by Mr Imona and struck them out.[14]The hearing before the Employment Tribunal, which took place on 27 August 1999 and is covered in their Extended Reasons sent on 15 September 1999, dealt with a review of their earlier decision to strike out the first two applications and a further application concerning Mr Imona's third complaint to the Employment Tribunal which was No. 3201254/99[15]Dealing first with the issue of review, as appears from the Extended Reasons, it was initiated by the Employment Tribunal themselves. However, having initiated that review they decided for the reasons set out in their Extended Reasons sent out the parties on 21 September 1999 that the interests of justice did not require a review. Their reasons were set out in paragraphs 11 to 16 of the Extended Reasons which are as follows:"11. Both Counsel agreed that the correct order of proceeding today would be to consider first the Respondents' contention that there was no ground for reviewing the striking out order in respect of the two 1998 applications, then to consider the application to strike out the 1999 Originating Application, and then if still necessary, to consider the applications to amend. In fact, the amendments which it has been sought to make have been considered in relation to the application to strike out the 1999 Originating Application because Mr Glah has submitted that the amendments would supply the further and better particulars which , it is conceded, have not been served despite the order of 26 May 1999.12. Mr Kibling has referred us to Harvey at paragraph (T) [1138]. He submits that whilst the discretion under paragraph (e) of Rule 11(1) is undoubtedly wide it is not boundless. He adopts the view expressed at paragraph (T) [1139] that cases in which the only application is made under paragraph (e) fall into two broad categories; those in which there has been 'a procedural mishap' of one sort or another, and another category which does not concern this Tribunal. Mr Kibling submits that examples of 'procedural mishaps' are where a party or his representative has not been given a fair opportunity to address the Tribunal on a point of substance, and he has referred us to the rest of that paragraph in Harvey and the cases there mentioned. In particular, he submits that it is not a procedural mishap giving rise to a review, that a party's representative, whether professional or not, has failed to argue the case properly.13. Mr Kibling submits that the Applicant himself was aware from March 1999 that there would be an application to strike out on 26 May, and he was aware of the warning in the decision of 26 March that it was unlikely that a further postponement would be granted. Mr Kibling points out that there was a luncheon adjournment during which time Mr Glah had the opportunity to take instructions. Mr Kibling submits that Counsel cannot advance a case unless able to do so as a matter of professional conduct. Therefore he asserts Mr Glah must have felt able in the afternoon to oppose the application to strike out. It is a fact that Mr Glah made a submission opposing striking out and was obviously familiar with the law relating to striking out. Mr Kibling further submits that the matters at issue were in a small compass, and that Mr Glah made a submission on the essential point, as to whether there was a real or substantial risk that as a result of the default a fair trial would no longer be possible. Mr Kibling points out that Mr Glah was not disadvantaged in making that representation.14. Mr Glah has submitted that it is correct to say that there was 'a procedural mishap' because he was not in a position properly to oppose the application, and it is in the interests of justice that this Tribunal should hold a review of the decision to strike out those two Originating Applications. 15. We have had to ask ourselves whether the interests of justice in fact require a review. We reject any suggestion that we should be bound by labels, but we can see no other sound reason for saying that the interests of justice require a review in this case other than, if such be the case, there was a 'procedural mishap'. 16. Having listened very carefully to the submissions of Mr Glah and Mr Kibling, and having been referred to the law mentioned above, we have come to the conclusion that what happened could not be described as a procedural mishap of the sort which has led to reviews in the cases mentioned in paragraph T [1138] of Harvey . On further reflection we have concluded that the possible ground that the interest of justice requires a review does not exist. There was a situation here much more like that in 'Ironsides Ray and Vials v Lindsey [1994] ICR 384' . The fact that Mr Glah was not as well instructed as he might have been (and we make no criticism of Mr Glah personally), cannot in this case be a ground for review. We must have regard to the interests of both sides to this dispute and to the public interest requirement that there should, as far as possible, be finality of litigation. We therefore hold that there is no ground for a review and we will not hold a review of the decision to strike out the two Originating Applications presented in 1998.[16]The Employment Tribunal then went on to deal with the third complaint put in by Mr Imona in paragraphs 8 to10 and 17 to the end of the Extended Reasons sent to the parties on 21 September 1999, which are in the following terms:
"8. By the same letter the Respondents gave notice that they would ask the Tribunal at today's hearing to consider a further application to strike out another claim by Mr Imona, (number 3201254/99) because Mr Imona has failed to comply with an order made in that case that he should provide further and better particulars in respect of that case by a date which was calculated to be 22 July 1999. That order, to provide further and better particulars in answer to a request from the Respondents, was made at a directions hearing on 26 May 1999, immediately after the decision to strike out the two 1998 Originating Applications was announced. 9. Notice of this application to strike out the 1999 Originating Application was given to the Applicant on 16 August 1999 when the Applicant was also informed of the Respondents' contention that there was no ground for ordering a review. 10. At the commencement of today's hearing Mr Glah handed to the Tribunal three amended Originating Applications, being amendments for which he sought leave. The three applications sought to be amended were the two of 1998 and the application of 1999." "17. We have next considered the application by the Respondent to strike out the 1997 (sic) application. 18. Immediately after the striking out hearing on 26 May 1999 the Tribunal gave directions in respect of case number 3201254/99. This was a new application presented to the Tribunal on 20 April 1999. This application complained of racial discrimination, racism and victimisation. This application took up the Applicant's story from where the other Originating Applications had let off. It complained about letters inviting him to an in-house disciplinary procedure alleging that he had made a fraudulent student award application, and that he had been involved in the organised abuse of the Council housing waiting list. We quote a little from it to give a flavour of the generality of the allegations:- 'The honest reason is that when the Council read the Employment Tribunal's decision dated 26 March 1999 in which the Chairman stated that 'there is a possibility that the Applicant may obtain representation by the CRE', that disclosure to the Counsel got them incensed with anger, hence they decided to line up to every allegation in hell against me. The Counsel have been making slanderous attacks and smear tactics against me and my family. I shall make the Counsel face the music at a later date. … I am a trade unionist and an elected spokesperson for black people, hence the white racists hate me implacably.' 19. It would be difficult to imagine an Originating Application more general in its serious allegations and more lacking in any specific material. There is not a name of a person who is accused so that the Respondents can approach that person to get a statement. There is nothing which would enable the Respondents to draft a proper Notice of Appearance. 20. This matter was obvious to the Tribunal on 26 May and the Tribunal therefore made an order that the Respondents should serve a request on the Applicant setting out plainly what particulars it required. The Tribunal went on to order that the Respondent should answer that request for further and better particulars. The request for further and better particulars was settled by Mr Kibling and was served on the Applicant on or about 25 June 1999. It is conceded that the particulars should have been given by the Applicant by 22 July, and it is further conceded that no particulars have been given. 21. Mr Glah has submitted that the Applicant's failure to provide the further and better particulars requested has come about because shortly after the hearing on 26 May 1999, the solicitors who had been instructed, only on 24 May 1999, to instruct Mr Glah withdrew their representation. Therefore says Mr Glah, he was not able to do any work until he got instructions from another solicitor. We understand and appreciate Mr Glah's position. Then, says Mr Glah, the Applicant contacted another firm of Solicitors, Messrs Zoi & Co. Messrs Zoi & Co were not able to accept instructions to appear at this hearing from the Applicant until they had taken out some insurance policy which, we understand, was to cover the possibility of costs being awarded against them in a contingency fee case. Apparently that arrangement did not materialise, and Mr Glah tells us that only in recent days has the Applicant been able to make other arrangements to meet Messrs Zoi's fees and therefore Mr Glah has been reinstructed. Thus he has appeared today, bringing with him amendments to the three Originating Applications, which he wishes us to consider. We accept that Mr Glah is relaying to us his instructions from the Applicant, but we cannot but observe that the Applicant has an unfortunate history relating to his representation. When he appeared at a directions hearing on 22 July 1998 he was represented by 'MD Personnel Services'. There was another directions hearing on 18 December 1998, and the Applicant informed the Tribunal two days before that directions hearing, that he was no longer represented by MD Personnel Services. 22. On 26 March 1999 there was the first hearing of the application to strike out the two 1998 Originating Applications. On that very day the Applicant himself informed the Tribunal that he was seeking new representation from the CRE and he made an application to postpone that hearing. The Tribunal then sitting, which had the same Chairman as today's Tribunal, but not the same members, granted that postponement so that he might be represented by the CRE. That Tribunal however made it clear that a further postponement was unlikely whether he was represented or not. 23. The next hearing took place on 26 May 1999. On that day Mr Glah appeared instructed by Messrs Markandan & Co, Solicitors, who had apparently been retained by the Applicant only the day before that hearing. On that occasion Mr Glah impressed on the Tribunal that now that new solicitors, and he himself were involved, the matter would be pursued expeditiously. We do not doubt that Mr Glah himself hoped and believed that that would be the case. The two 1998 Applications were struck out that day, but there remained the 1999 Application which proceeded, and in respect of which the direction was made for further and better particulars. 24. Whatever Mr Glah has been instructed by the Applicant about Messrs Markandan & Co, it was not until 20 August 1999 that they informed this Tribunal that they were no longer instructed by the Applicant and wished to have their name taken off the record as the Applicant's representative. Then, on 26 August 1999 this Tribunal received a letter from Messrs Zoi & Co informing the Tribunal that they acted for the Plaintiff, and enclosing a Notice of Acting dated 26 August 1999. 25. In effect, Mr Glah is saying that for the greater part of the time since 26 May until 27 August the Applicant was not effectively represented by lawyers. The Applicant has created the unfortunate impression of frequently changing lawyers days before a hearing. This may be a misfortune peculiar to him, but it cannot be allowed to damage the legitimate interests of the Respondents in seeing that this matter is dealt with properly and brought to a reasonably expeditious conclusion. 26. Even if the Applicant were not properly represented by lawyers between 25 May and 27August, we see no reason why he could not himself have made a reasonable effort to answer the request for further and better particulars. After all, what happens when a request for further and better particulars is served on a party's lawyer, is that the lawyer interviews the Applicant and gets from the Applicant the answers to the request. The request for further and better particulars, drafted by Mr Kibling, is clarity itself. By far the greater part of it is a simple request for facts which are known to the Applicant himself, and would not be known to his lawyers until he told them. Mr Glah has described this request for further and better particulars as requesting evidence, not particulars of fact. With respect to Mr Glah we cannot agree. Nothing could more properly be described as a request for further and better particulars of fact than this request. Mr Kibling submits that without the further and better particulars which he requested on or about 25 June 1999, the Respondents cannot begin to identify either the documents which are relevant, nor are they able to begin to prepare witness statements, or even identify which witnesses need to be called. The directions given on 26 May provided a timetable for the conduct of the 1999 Originating Application. There are no working days between now and Tuesday 31 August 1999. Mr Kibling points critically to the amendments, which Mr Glah wishes to make to the 1998 Originating Applications (though now struck out), and the 1999 Originating Application. Though Mr Glah suggests that in some way these amendments may supply the want of particulars which the Respondents have complained about throughout the whole history of these three applications, we cannot see that they provide any particulars at all. In fact, the application to amend the particulars of claim in relation to the 1999 Originating Application is so lacking in particularity as to be worse (if that were possible), than the un-amended Originating Application. 27. Mr Kibling submits, in short, that the Respondents had been provided with no particulars, either in the time laid down, or at all. Throughout this period the Applicant has been represented by two firms of solicitors, and at the two last hearings has been represented by the same Counsel. Yet the Respondents have no particulars which would assist them in resisting the claim made against them. He submits that, as the hearing is listed for 22 November 1999 the Respondents are severely prejudiced by the Applicant's conduct, bearing in mind particularly the passage of time. Mr Kibling submits that the Originating Application should be struck out for want of prosecution. He submits that there has been an inordinate and inexcusable delay on the part of the Applicant or his lawyers. In relation to this he submits that in applying the principals to be extracted from the case of Birkett -v- James regard must be had to the cultural differences between Tribunals and the ordinary Courts. He further submits that the delay will give rise to the substantial risk that it is not possible to have a fair trial of the issues in this action, or is such as is likely to cause, or to have caused serious prejudice to the defendants. The principal reason for this is that with the passage of time the memories of witnesses have faded, and will fade. It is to be borne in mind that the Applicant has stated in Tribunal that if he proceeds with his third application he will seek to adduce evidence which he would have sought to adduce in relation to the two 1998 applications. Matters in those applications went back for many years, and the Applicant would seek to adduce evidence of them so that the Tribunal may draw inferences as to allegations, which relate to a period within the Tribunal's jurisdiction. 28. In our judgment Mr Kibling is right. We consider that there has been inordinate and inexcusable delay on the part of the Applicant, and that it gives rise to a substantial risk that it is not possible to have a fair trial of the issues in the action. In fact, it is not yet possible to say what the issues in the action are. We think it is also likely to have caused, or to cause prejudice to the defendants because, by the time they are told the names of the witnesses they might need, the passage of time will have dimmed memories. 29. Mr Kibling further submits that there has been an intentional and contumelious default by the Applicant in complying with the order of 26 May 1999. We remind ourselves that the order of 26 May 1999 was made immediately after two of the Applicant's Originating Applications had been struck out. In our judgment, the Applicant had been deliberately disrespectful (contumelious) in the casual way in which he has dealt with that order. 30. We are therefore of the view that there has been intentional or contumelious delay, and there has been inordinate and excusable (sic) delay, and there is a serious risk of prejudice to the Respondents and the substantial risk that a fair hearing is impossible. 31. We therefore strike out the Originating Application number 3201254/99, both under our powers given by Rule 13(2)(f) and under our powers given by Rule 4(7). 32. As Mr Glah has indicated that the Applicant will appeal the decision to strike out the three Originating Applications we have not vacated the 21 days which has been set aside in November 1999 for the trial. The parties are asked to inform the Tribunal as soon as possible if those dates will not be required."
[17]It is apparent from those Extended Reasons that the Employment Tribunal considered that the amendments did not advance matters and were quite satisfied that Mr Imona, by himself and by his advisers, had failed to comply with orders for particulars.[18]The Employment Tribunal then again considered the matter of prejudice and reached a conclusion that there was prejudice to the Respondents and struck out the third Originating summons.[19]As the Employment Tribunal point out in their Extended Reasons the third Originating Application took up where the other two had left off. There is a continuation of what can only be described as a simply appalling history in the conduct of these proceedings by Mr Imona in his failure to provide particulars and the details of his claims. In all three claims he has made generalised allegations and has simply failed to provide particulars. Also it has been a common theme that as and when matters were brought before the Court he has at a late stage sought a postponement. That is what happened before us today.[20]Given the fact that the review of the earlier decision of the Employment Tribunal contained in the Extended Reasons sent on 30 June 1999 was initiated by the Tribunal itself, we treat an appeal against the decision to strike out the first two applications as being before us as a matter of substance, as well as a matter of attack on the review of that decision.[21]As we have already indicated, in our judgment the Employment Tribunal did not err in law in the approach which they took to the striking out of those first two applications and, having treated that appeal before us, we dismiss it.[22]Moving to the content of the second decision of the Employment Tribunal under appeal, for the avoidance of doubt we also state that we can see no error of law in the approach taken by the Employment Tribunal to the issue of review, and therefore the appeal against that aspect of their second decision is also dismissed. Of course, having treated the substantive decision as being before us, that element of the appeal is largely academic.[23]Turning finally to the second element of the second decision, namely the decision to strike out the third application, again in our judgment we can see no error in law by the Employment Tribunal and we dismiss the appeal against that decision, striking out the third application.[24]It follows that we have treated as being before us an appeal by Mr Imona against the decisions of the Employment Tribunal striking out his three applications and we have dismissed those appeals.