MR J SECRETT v (1) MISS H M BROADHURST 2) MR B O’DONNELL [2000] UKEAT 389_00_1312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 389_00_1312Case No Appeal No. PA/389/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J SECRETTAPPELLANT(1) MISS H M BROADHURST 2) MR B O’DONNELLRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 13 December 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 RESPONDENTS MR JUSTICE LINDSAY (PRESIDENT) : This matter comes before us for disposal and no one appears for any party. No party, either, is intending to attend, as far as we know.[2]The position is that on 18 November 1999 in the case Broadhurst & O'Donnell v Mr Secrett , quantification of the award that had been made to Miss Broadhurst and Mr O'Donnell was remitted by the Employment Appeal Tribunal, to go back to the Employment Tribunal for a fresh quantification of the award.[3]On 8 February 2000 there was that remitted hearing at the Employment Tribunal and the Respondent, Mr Secrett, did not appear, nor was he represented.[4]On 21 February 2000 the decision was sent to the parties and it was as follows:
"The decision of the Tribunal is that the respondent is ordered to pay damages to Miss Broadhurst in the sum of £15,700 and is ordered to pay damages to Mr O'Donnell in the sum of £9,035. Further, in Mr O'Donnell's case, the Tribunal declares that the respondent made an unlawful deduction of wages and is ordered to pay a further sum of £350 to him."
That, as I say, was sent to the parties on 21 February 2000.[5]On 18 March 2000 a Notice of Appeal was sent to the Employment Appeal Tribunal. It was received on 20 March. It was on Mr Secrett's behalf and paragraph 2 of the very short Notice of Appeal said:
"The appellant was not served with any documentation by the Industrial Tribunal which, in his absence, reheard the case on 8.2.2000. The appellant notified the Employment Tribunal of his change of address for service upon learning of the hearing on 8.3.2000, and a review hearing has been fixed for 29.3.2000. This notice of appeal is to protect the appellant's position as time for appeal will expire on 21.3.2000."
His address in the Notice of Appeal is given as George House, Wellow, Bath BA2 8QQ.[6]On 6 April 2000 the Employment Appeal Tribunal wrote to Mr Secrett saying that his appeal would be stayed because it was understood that he had asked for a review and that the review hearing was fixed for 19 April. On 19 April the Employment Tribunal refused a review, giving reasons.[7]On 28 June the Employment Appeal Tribunal received a letter from a firm of Solicitors who were asked by Mr Secrett to consider whether they would be willing to act for him. They wanted papers in relation to the case in order that they could consider whether to act for him or not.[8]On 13 July the EAT wrote to that firm of Solicitors, Andrew Maynard & Co, 13 Cavendish Place, Bath and they said (It is Mr Newton's letter on behalf of the Registrar at the EAT):
"I enclose a copy of the Appellants Notice of Appeal. This Appeal is currently stayed pending the outcome of the Employment Tribunal Review hearing. A decision has now been promulgated by the Employment Tribunal in this regard. We therefore require the Appellant to inform us how he wishes this appeal to proceed. Until we receive written confirmation that you are acting for the Appellant we will continue to correspond directly with him."
[9]On 9 August the Employment Appeal Tribunal, by Mr Newton on behalf of the Registrar, wrote to Mr Secrett at the George House address and said:
"This appeal is currently stayed pending proceedings before the Employment Tribunal. The Employment Tribunal have promulgated their decision regarding the Review hearing and we therefore require you to inform us how you wish your appeal to proceed. Please reply within 14 days of the date of this letter."
Nothing was heard and on 1 September the Registrar made an Order that says:
"UPON the failure of the Appellant to reply to the letter of the Employment Appeal Tribunal dated the 9 th day of August 2000 IT IS ORDERED that unless a written response to the aforesaid letter is received within 7 days of the seal date of this order this appeal will be set down for disposal."
And, still, nothing further was heard and so the matter has been listed for disposal.[10]Under Employment Appeal Tribunal Rule 26, we must take it that there has been a failure to comply with an order or direction of the Employment Appeal Tribunal and we therefore dismiss the appeal consisting of the Notice of Appeal of 18 March 2000.[11]However, there is some reason to believe that Mr Secrett has suffered mental health problems. In his Skeleton Argument of 10 November 1999 he wrote of mental illness. He gave the information that he had had consultation with his GP, Dr Snowise, that he had had consultation with Dr Bruce Jones, Consultant Psychiatrist and with Mr David Childs, Clinical Psychologist and there are references to depression.[12]It is therefore possible (and we merely say possible) that either he is not at his address given, the George House address, or, if he is there, that, by reason of mental health, he has not been able to attend to matters as they are sent to him[13]So what we do is to direct that this Order should lie "in Office" for 35 days. It will not therefore be sealed before the expiry of 35 days from today. In the meantime, the staff here are to write two letters; one is to go to Dr Snowise, if his address can be found. It is a relatively unusual name, one would think, and he is a general practitioner in the Bath area and I would hope that we are able to find out his address. The other one would be to the Law Society. Each letter ought to be marked "Confidential" and each is to mention that in late 1999 Mr Secrett, a Solicitor or former Solicitor, was asserting that he had difficulties in relation to his mental health and asserting also that the Law Society had intervened in his Practice. Each letter is to enquire whether the addressee has any reason to believe that requests addressed to Mr Secrett at George House, Wellow, Bath BA2 8QQ (and asking him whether, and how, he wished to proceed with his appeal) would not have been capable of being understood or answered by Mr Secrett for mental health reasons. We ought to include a stamped addressed envelope for the matter to be returned to the EAT and each letter should request that an answer should be given as soon as possible.[14]Unless one or both addressees answers within 35 days from today indicating that he or it does have grounds to believe that mental health reasons have existed of the kind we have described, the order, without more ado, would then be sealed at the expiry of 35 days. But if either of those two addressees answers to suggest that there were mental health problems of the kind that we have mentioned, well then, the matter should be referred to the President and we can then consider what order should be made in place of the one that, by then, will merely have lain "in Office" and will not have been sealed.[15]The object of the exercise is to ensure, as best we can, that there is truly a failure to answer and to take steps on Mr Secrett's behalf, rather than that involuntarily nothing has been done. It seems an economical way of arranging things to that end and that is the order that we make.