MISS D BRAYFIELD v SELCLENE LTD [2000] UKEAT 1522_00_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1522_00_0711Case No Appeal No. PA/1522/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS D BRAYFIELDAPPELLANTSELCLENE LTDRESPONDENT
Before
Mr Justice LindsayDate 7 November 2000
[1]APPEARANCES For the Appellant MISS D BRAYFIELD In person For the Respondent MR P YOUNG Representative 9 Alfreda Court Alfreda Street Battersea SW11 5HQ MR JUSTICE LINDSAY (PRESIDENT) I have in front of me an Appeal of Miss Donna Brayfield in the matter Brayfield v Selclene . Miss Brayfield appeals against the striking out of her Notice of Appeal. It was struck out because of her failure to have supplied further and better particulars of her Notice of Appeal. Today Miss Brayfield has appeared in person and Selclene, which I take to be a firm, has appeared by its proprietor, Mr Philip Young.[2]On 10 August 1999, Miss Brayfield lodged an IT1 for breach of contract and it what called "Illegal Deductions of Earnings". She claimed to have been employed between 5 May 1999 and 7 July 1999 by Selclene.[3]On 1 September 1999, Selclene lodged an IT3 claiming that she had chosen to leave rather than that she was dismissed. On 8 November 1999 there was a hearing at the Employment Tribunal in front of the Chairman alone, Mr D M Booth. Miss Brayfield did not attend and she has later said that that non-attendance was attributable to sickness but no medical evidence has been put in, however, informal. At the hearing at the Employment Tribunal evidence was given on behalf of Selclene and it was believed.[4]On 22 November, Summary Reasons were given by the Tribunal. On 13 December a Notice of Appeal was sent in by Miss Brayfield, received by the Employment Appeal Tribunal on 14 December, and in the paragraph 6 part of the printed that begins:
"The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that (here set out in paragraphs the various grounds of appeal ):- What Miss Brayfield had written was this: "
GROSS MISJUSTICE FABRICATION (dealt with in my absence due to sickness) I would like the chance to appeal to appear myself."[5]On 1 March 2000 Extended Reasons were given and the Tribunal indicated that the application was dismissed; the Extended Reasons were sent to the parties on 1 March. The Notice of Appeal of 13 December, although lodged in the interval between Summary and Extended Reasons, was taken to be a Notice of Appeal. On 12 April the Employment Appeal Tribunal wrote to Miss Brayfield saying this:
"We have now received a copy of the extended reasons to this decision and the Registrar has directed that this Appeal should now be set down for a preliminary hearing. But before this can happen, you are required to provide Further and Better Particulars of the Notice of Appeal in accordance with paragraph 2(5) of the enclosed Practice Direction. Your reply should reach this office within 14 days of this letter."
[6]On 25 April Miss Brayfield telephoned the Employment Appeal Tribunal to say that the Practice Directions had not been enclosed and so a copy of the Practice Directions was then sent and a further 14 days was granted for the lodging of the required particulars. But nothing was heard and so on 11 May 2000 an "Unless" Order was made that said this:
"UPON the failure of the Appellant to provide further and better particulars to the Notice of Appeal dated 13 th day of December 1999 in accordance with paragraph 2 of the Practice Directions 1996 AND UPON the failure to respond to the EAT letter dated 12 th day of April 2000 IT IS ORDERED that unless further and better particulars are received by the EAT within 7 days of the date of this Order the Notice of Appeal will be struck out"
[7]Still, remarkably, nothing was heard and so consequently, on 26 May, another Order was made by the Registrar, that said:
"AND UPON the failure to provide and better particulars of the Notice of Appeal within the time specified in the EAT Order dated the 11 th day of May 2000 IT IS ORDERED that the Notice of Appeal be struck out"
[8]On 30 May, Miss Brayfield telephoned the Employment Appeal Tribunal but nothing was received in writing and so on 22 June the Employment Appeal Tribunal wrote to her saying:
"I refer to the above matter and your telephone call on 30 th May 2000. Before we can proceed any further in this matter we do require you to confirm in writing that you wish to appeal the Registrar's Order of the 26 th May 2000, and giving your reasons for the appeal."
[9]Nothing was heard and so on 14 July the Employment Appeal Tribunal wrote again:
"I refer to the above matter and my letter of the 22 June 2000. I have not yet received your written confirmation that you wish to appeal the Registrar's Order dated the 26 th May 2000. If you wish to proceed with this appeal written confirmation is required and I would appreciate it if you could lodge a reply within 14 days of the date of this letter."
[10]On 26 July, Miss Brayfield wrote a short letter saying that she confirmed that she did wish to appeal the Registrar's Order of 26 May and consequently the Appeal now comes before me. The first application that Miss Brayfield made today was that the matter should be adjourned in order that she could obtain representation. But, as it has seemed to me, first of all, the subject matter that needs to be examined is not of a technical nature. What is necessary is for Miss Brayfield to explain why, despite the correspondence and contacts and the Unless Order, nothing whatsoever has been heard by way of explanation of her Notice of Appeal. No Further and Better Particulars have been received. To have explained her Notice of Appeal would not have required any great technical expertise. But, secondly, as the chronology has indicated, there has been a great deal of delay here. Miss Brayfield has known for a long time what is required of her and it would be unfair to Selclene simply to adjourn at this very late hour for representation when so much time has already been lost in the matter. Accordingly I decline to allow an adjournment for representation.[11]There was another delay in the hearing, before me today in the sense that Miss Brayfield first said that the required particulars had been given and that they had been given by fax. However, she cannot find a copy of the fax and cannot even provide the date for the fax and Mr Young and Selclene have not received anything, nor has the Employment Appeal Tribunal.[12]Indeed, no reason has been advanced for the failure to supply Further and Better Particulars in response to the Employment Appeal Tribunal's letter of 12 April. No reason is given to explain the failure to act upon the Unless Order and, even now, so far as one can tell, nothing is in being even in draft by way of being particulars. The Notice of Appeal, as it stands, is hopelessly vague. It would be quite unfair to ask the Respondent to proceed upon it.[13]In the circumstances, notwithstanding that Miss Brayfield has not been represented professionally before me, it seems to me that the only course I can take is to dismiss the Appeal.