DR A ABEGAZE v (1) MR A BELESARIO (2) ADVANCE INTERNATIONAL GROUP LTD [2000] UKEAT 57_00_1304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 57_00_1304Case No Appeal No. EAT/57/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A ABEGAZEAPPELLANT(1) MR A BELESARIO (2) ADVANCE INTERNATIONAL GROUP LTDRESPONDENT
Before
Mr Justice Burton Mr J C Shrigley Ms B SwitzerDate 13 April 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR M WHITCOMBE (of Counsel) Instructed by: Messrs Pinsent Curtis Solicitors 41 Park Square Leeds LS1 2NS MR JUSTICE BURTON : This is an appeal by Dr Abegaze against the conclusion of the Employment Tribunal at Southampton by way of a unanimous decision on 11th January 2000. There were three matters brought before the Tribunal: one by the Respondent, Advance International Group Ltd and two by the Appellant. The Respondent's application was for an extension of time to serve notices of appearance on its own behalf and on behalf of the first named Respondent, Mr Belesario, of, I think, 25 days because their Notice of Appearance had been served out of time. The applications by the Appellant, which are material for this Tribunal, were an application for a witness summons in respect of the first named Respondent, Mr Belesario, and an application for transfer of the hearing to London.[2]The Employment Tribunal unanimously agreed to extend the time for the Respondents' Notices of Appearance, and in relation to the Appellant's applications, made no order in respect of a witness summons against Mr Belesario and ordered that the hearing should not be transferred to London but should continue in the Southampton Employment Tribunal.[3]I deal with each of those three points in turn, in respect of all of which the Appellant has appealed.[4]First of all the extensions of time. The Tribunal dealt correctly with the law in this regard. They referred to a decision of Tull v Severin [1998] ICR 1037 which, as the Tribunal pointed out in paragraph 23 of its decision, suggested "that the mere attendance of a respondent at the hearing should be treated as an intention to defend and an application for leave to so to do." This set the background for the fact, as fact it is, that there does appear to be a different approach to the question as to whether a Respondent should be allowed to defend or have extensions of time to defend, than the approach which is applied to the strict question of bringing an application by an Applicant. There may be good justifications for that. The principle, which underlies the bringing of applications at all in the Courts or Tribunals, is that a time limit is there to ensure that the case is brought on as quickly as possible and before memories lapse and before situations irreparably change. Once the claim is brought on then of course it will be brought to trial as soon as conveniently can be done, and any step which might prejudice the bringing on of that claim for a speedy hearing will be looked at with care and probably askance; but once it has been started, it may be that time limits for both sides in such proceedings may be looked at with a different eye to the eye that is applied to the bringing of the proceedings themselves. Be that as it may, that is in fact the law as laid down by previous authorities. So far as statute is concerned, an application, for example, for unfair dismissal must be brought on within the time limit unless it can be shown to have been not reasonably practicable to do so. Discrimination cases are looked at with a slightly broader brush and in particular the question as to whether it is just and equitable to allow such a claim to be brought is a prime consideration.[5]So far however as extensions of time for a Notice of Appearance is concerned, the reported decision to which the Tribunal had specific regard was Kwik Save Stores Ltd v Swain [1997] ICR 49 , on which Mr Whitcombe for the Respondents relies again before us. The principles are there set out clearly in the headnote of the judgment given by Mummery J on behalf of the Tribunal. The headnote reads:
"… it is incumbent on a respondent applying for an extension of time for serving a notice of appearance before a full hearing on the merits had taken place to put before the industrial tribunal all relevant documents and other factual material in order to explain both the non-compliance with rule 3 of the Industrial Tribunals Rules of Procedure 1993 and the basis on which it is sought to defend the case on its merits; that an industrial tribunal chairman, in exercising the discretion to grant an extension of time to enter a notice of appearance, had to take account of all relevant factors, including the explanation or lack of explanation for the delay and the merits of the defence, weighing and balancing them one against the other, and to reach a conclusion which is objectively justified on the grounds of reason and justice; that it was important when doing so to balance the possible prejudice to each party …"
[6]The Tribunal in this case first of all addressed the question as to what the explanation was for the delay. The explanation that was put forward primarily was one of muddle and mistake. There was some mention of the fact, which was indeed the case, that the Respondents' insurers, First Assist Group Ltd, had originally gone on the record, which may have been a contributory factor towards a delay in papers reaching Messrs Pinsent Curtis, who were in fact the solicitors acting for the Respondents; but that was not, it is clear, the primary explanation for what occurred. The explanation for what occurred, the Tribunal accepted, did not involve any kind of deliberate flouting of Court orders or a deliberate ignoring of rules of the Court. It arose in this way. The Originating Application brought by the Appellant was insufficiently particularised, and the Tribunal of its own motion required provision of further and better particulars of the claim to be provided by 21st October 1999. The Tribunal directed that the Respondents should file a Notice of Appearance within 21 days of receipt of the further and better particulars. Those further and better particulars were supplied by the Appellant and sent to the Tribunal and received by the Tribunal on 21st October 1999. Those particulars were sent on, as it happens, to the wrong party as I earlier indicated, but were, at any rate, fairly shortly received by Messrs Pinsent Curtis. The error in question, which Mr Booth acknowledged, was Mr Booth's belief that the Tribunal should notify the parties that there should now be filed a Notice of Appearance, and paragraph 14 of the decision records:
"… Mr Booth now recognises that there was no need for such a specific request, since by sending the Particulars to the Respondents on 21 October 1999, the Tribunal was impliedly notifying them that they should now file a Notice of Appearance."
The Tribunal concluded that that was an error for which the Respondents' solicitors were responsible, and that that was the explanation for the delay, because it was only when they were notified that they ought to have put in the Notice of Appearance that they did so.[7]Having concluded that that was the reason for the delay, and that that was not a reason which reflected well on the Respondents' solicitors, but nevertheless was the explanation for the delay and was not one which was caused by either deliberate conduct or any error on the part of the Respondents themselves, it was required that the Tribunal consider, simultaneously or subsequently, the other factors referred to in Kwik Save Stores Ltd . The question of prejudice to both parties, which in a case like this is obviously straightforward on the one part - the claimant in a case would prefer it if his case could go forward to a hearing without meeting a positive defence; and on the other – a respondent would be prejudiced if the claimant is entitled to go forward to a hearing without being met substantively by a case on the respondent's behalf. But the greater question is whether any particular prejudice is caused, that is, for example, that as a result of a 25 day delay there has been some specific development such as the death of a witness or the loss of a document or something similar. Plainly in this case there was no element of that kind to add to the equation. The other matter, which the Tribunal was required to consider, was the merits of the case. Now this, of course, does not involve and could not or should not involve, on an interlocutory application of this kind, a resolution of the merits or even a weighing of it to any extent at all, it requires that the Tribunal are satisfied that there is a defence put forward by the defendant so that there is some purpose in an extension of time for the service of its defence.[8]The facts of this case, I should briefly mention, as they appear to us, from the limited information, which we have before us. It appears that the Appellant entered into some kind of a compromise agreement with the second Respondent at a time when the first Respondent was not managing director or indeed, as I understand it, anything to do with the second Respondent, relating to claims which the Appellant may or may not have had against the company at that stage whenever it was, which included a confidentiality clause. The Appellant alleges, by way of his claim for racial discrimination in the Employment Tribunal, that the second Respondent subjected him to a detriment and/or victimised him, by disclosing that confidential agreement to a third party. Whether that is in law or in fact a good contention will be no doubt for consideration hereafter, but the defence that it is sought to be put forward, and was put in general terms forward by the Respondents when explaining, as they were obliged to do, the merits of their case, so as to obtain their extension of time, was that such a disclosure as there had been to the third party was pursuant to an order of a subsequent Tribunal; that is, it appears that the Appellant was in litigation before a Tribunal with a third party, British Telecommunications Plc, and that British Telecommunications Plc procured that Tribunal to make an order for disclosure against the second Respondent. The second Respondent's solicitor successfully claimed professional privilege, but the second Respondent itself had no answer to a claim for requirement or order that the documents be delivered up, which they then were for inspection by British Telecommunications Plc. It is apparently that of which the Appellant complains, and the second Respondent denies that what it did either could be complained of at all or, if to be complained of at all, did not amount to racial discrimination of any kind against the Appellant.[9]On that showing by the Respondents of the nature of its defence, the Tribunal was, it seems to us, fully able to and entitled to come to the conclusion that, within the principle of Kwik Save Stores Ltd , there was merit in its defence sufficient to allow the Tribunal to come to the conclusion that the delay, for which the Respondents were entirely responsible, of 25 days, should be overlooked, albeit that a costs order was made in the Appellant's favour in relation to the consequences of the extension of time.[10]The Appellant has appeared today and has made a determined but courteous oral submission by way of an attack on the Tribunal's conclusion. First, he says that the Tribunal erred in making no mention of what he says he told the Tribunal, namely that he had a telephone call with Mr Booth. The circumstances which we allowed him to tell us about, after his initial uncertainty as to whether in fact he had put the matter before the Tribunal at all, but subsequently becoming, as he put it 100% certain that he did do so, were simply as follows: that he had understood that Pinsent Curtis through Mr Booth were the relevant solicitors for the Respondents, that he received a letter of 21st October from FirstAssist Ltd saying that it was representing the Respondents, and that he then rang Mr Booth to query what was happening, because he was surprised to receive such a letter, and he has told this Tribunal that he was told by Mr Booth that indeed it was he, Mr Booth, and not FirstAssist Ltd who was dealing with the matter. The point that Dr Abegaze makes is then that there was no reference to this telephone conversation in the Tribunal's conclusion. The inference he draws from it, is that by 22nd October, if not before, Pinsent Curtis thus were put on notice of what has been referred to as the intervention of FirstAssist Ltd. That may well be right, but it does not appear to us that that has any affect on the ultimate outcome, because it is accepted that Pinsent Curtis did at some early stage appreciate that muddle, and could have got the Notice of Appearance in well in time before the 21 days were up, had Mr Booth appreciated that he was required to do so; and so the simple fact that he knew about the muddle with FirstAssist Ltd could not be and is not relevant to the question before the Tribunal and is unaffected by the additional piece of information which thus Dr Abegaze says he brought to the attention of the Tribunal.[11]The second point that he makes is that Mr Booth is an experienced solicitor, and that the Tribunal failed to take that into account in its conclusion. We do not know how experienced Mr Booth is, but we are prepared to assume that he is experienced. He made an error, which he admitted. The Tribunal accepted that the error was due to him, notwithstanding that he was experienced. It does not appear to us that that is a factor which can or needs to weigh either with that Tribunal or with us, once the mistake has been found.[12]The third point he made is really the same as the first, namely that any muddle between FirstAssist and Mr Booth cannot account for the full period of the delay. That, it appears to us, is clear, was clear to the Tribunal and is no answer to the reason why the Tribunal in the event extended the time.[13]The fourth point that he makes was that there had been communication between him and Pinsent Curtis after 21st October 1999. It turned out, in the end, that there was only one such relevant communication. It is, in the circumstances, of some significance, though perhaps not the significance that the Appellant placed upon it. Apparently the Appellant had written one or two letters direct to the first named Respondent and the letter of 27th October, of which we were supplied a copy by the Appellant, responded to that fact and invited the Appellant not to write directly to the first or indeed second Respondents, but to communicate with Pinsent Curtis. The letter of 27th October, in material part, reads:
"We refer to your letter of 20 October to Mr Belesario. At the moment we have not been told by the Employment Tribunal in Southampton that there is any need to file a Notice of Appearance and accordingly your application has not been listed for any hearing. If the matter proceeds to a full hearing then we will write to you to inform you …"
That is, if that letter was before the Tribunal, clear evidence upon which it was entitled to conclude, and if it was not before the Tribunal, clear evidence which supports the conclusion that the Tribunal reached, that the belief of Mr Booth to which reference was made and as to which a conclusion was made by the Tribunal, was a genuine one honestly held at the time, and, indeed, set out in terms in that letter. The Appellant tells us that he did not, and there is no reason why he should have done, respond to that letter, but certainly there was nothing to disturb the mistaken belief by Mr Booth, which is there expressly set out in the letter, that he was then under no obligation to serve a Notice of Appearance.[14]The fifth point that the Appellant put forward was, as it immediately became clear, a totally misconceived one. He asserted, and we do not find it easy to understand how he could have so asserted, that in fact the further and better particulars of the Originating Application were not supplied to the Respondents on 21st October but on 11th October. He based this submission on a document, but when he produced that document in the course of his submission to us, which makes it entirely clear from the fax annotation at the top of the document that it was indeed supplied on 21st October not on 11th October, and when that was pointed out to him, he withdrew the submission.[15]The sixth submission that the Appellant made was that the Tribunal either erred in taking into account the alleged merits of the defence, or should have given him an opportunity of an adjournment to expand and put forward a case in opposition to it. In paragraph 28 of the Tribunal's decision it records as follows:
"… the Applicant objected to Mr Booth referring to the strength of the defence, because the Applicant felt strongly that he should not be called upon to look at the merits of the case today because he had not come today to deal with the merits and that the merits were not relevant to today's issue." and at paragraphs 39 and 40 "
The Applicant has urged us not to look at the merits because he has told us that he is not prepared today to deal with those. However, we feel that it is appropriate in accordance with the dicta of Sir Thomas Bingham, at least to look at what the respective cases are. This in no way prevents the Applicant form putting forward his full case on 25 January 2000. 40. For the reasons he gave in paragraph 39 above, the Applicant was unwilling to elaborate on the written Originating Application. …" Then the Tribunal continued to summarise what it understood, to the same effect that I have sought to summarise it in this judgment, was the nature of the claim and of the defence. The conclusion of the Tribunal, at paragraph 43, was:
"These are, of course, matters for the full hearing, but suffice it to say that they do appear to give at first sight a fairly strong defence to the Respondents."
[16]The dictum of Sir Thomas Bingham, to which I referred, was in Costellow v Somerset County Council [1993] 1WLR 256 at 263, where he stated:
"A plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural fault unless the default causes prejudice to his opponent for which an award of costs cannot compensate."
That was referred to by Mummery J in the Swain case as part of the justification to the like effect in respect of a defendant who has committed a procedural default.[17]Before us, the Appellant has submitted that he should have been given the opportunity to answer the Respondents' defence. It appeared to us that he may well have misunderstood what was the task of the Tribunal on this occasion, simply deciding what should be the consequence of a procedural defect or failure by the opposing party. It could not possibly be, nor is intended to be, the weighing up of the merits of the case, not to speak of looking at the evidence on either side. All that was required was to see that there was a defence. In those circumstances, it would have been wholly inappropriate for the Tribunal to grant an adjournment in order that the Appellant should rustle up his ammunition and show the full strength of his own claim in order to seek to persuade the Tribunal that there was a likelihood that he would win. There might be circumstances in which some kind of a smoking gun could be produced by an Appellant so as to be able to show immediately and beyond doubt that a defence which is supposed to be put forward by a Respondent has no chance whatever of success. The Tribunal clearly gave the Appellant the opportunity of saying something in that regard, along those lines, as is clear from paragraph 40, which we have referred to, which records that "the Applicant was unwilling to elaborate on the written Originating Application" . We have given the same opportunity to the Appellant before us today, to seek to explain why it is that he says that the Respondents has no defence at all, and should not have been permitted to put forward a Notice of Appearance, accepting as he, perforce, has to do, or at any rate now does before us, that looking at the merits is a necessary component in the question as to whether a Respondent should be given an extension of time to put in a Notice of Appearance. He has indicated that his case is that the second Respondent was not obliged by Court order to make the disclosure and/or that they did or may have produced some relevant disclosure prior to making of a Court order, and/or that their aim, in any event, was to cause him detriment or victimise him. That may be his case, but it appears clear to us on what we have seen, that there is at the very least a potential answer which cannot possibly be ruled out at this stage and which the Tribunal was certainly entitled to say could not be ruled out at the stage the matter had reached before them.[18]In those circumstances, we are entirely satisfied that the exercise of discretion by the Tribunal in relation to an extension of time was one which was within the parameters of the authorities which bound the Tribunal, and which amounted to a conclusion to which it was entitled to come.[19]We turn to the second and third grounds of appeal against the decision of the Employment Tribunal. Mr Belesario, the first named Respondent, was not, as I have previously indicated, managing director of the company, the second Respondent, at the time when the compromise agreement, which is apparently the subject matter of the claim, was entered into. Nor was he the subject of any order for disclosure by the Tribunal, nor did he attend, as it seems the company secretary did, to give the disclosure which is now complained of. The Tribunal were satisfied, on their understanding and assessment of the case as it appeared before them, that if, as they were told, the second Respondent was not intending to call the first Respondent, there did not appear on the evidence or the way the case was put before them, any basis on which, as was put in paragraph 59, they could be "satisfied that Mr Belesario can give any evidence which will materially assist the Applicant's case, particularly as it appears to relate to events on 22 July 1999 when Mr Belesario was not present." The authority to which Mr Whitcombe has drawn attention is Noorani v Merseyside TEC Ltd [1999] IRLR 184 CA , and Henry LJ states at paragraph 32 that in relation to that case:
"… the Employment Appeal Tribunal found , the ET were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. …"
In paragraph 36 Henry LJ said as follows:
"It has never been the position that any evidence that might be relevant must be admitted; see Gorman v The Trustees of St Clare's Oxford (unreported) Employment Appeal Tribunal presided over by Slynn J on 23 October 1980. In that case there was a familiar employment tribunal situation. The employee sought witness summonses for his employer's senior management to attend when they would be most unlikely to be able to add anything to the witness in middle management who was to be called in relation to deal with the issues on which the senior management could help. And, as that case makes clear, if during the course of the case it seemed that the original decision not to issue a witness summons might be wrong, then the employment tribunal can always remedy the matter, adjourning if necessary."
That is the course, which the Employment Tribunal took in this case, because at paragraph 60 it said in terms:
"… although we refuse the application at this stage, if during the course of the evidence on 25 January 2000 Mr Belesario's evidence does become material, the Applicant will be at liberty to renew his application for a Witness Order."
Nothing further has been put before us by way of evidence which could indicate, even if it were relevant for us to do so and even if we were able to take a fresh look at the position, which being an appellate body we are not, to enable us to reach any different conclusion and we are entirely satisfied that the Employment Tribunal was acting properly within its discretion when it rejected the witness summons.[20]The third point is what the Appellant described, at one stage, as "delicate" and on another sensitive. He submits that the Regional Chairman, and by implication his members, were, as he puts it, completely racialist. He put forward no grounds for that submission by way of pointing to any conduct of the Regional Chairman by way of act or word, but he relied on the following:(1) He has brought an application at the Reading Employment Tribunal, which is the same region as Southampton and, in circumstances which he did not expand on, that application failed on its merits. He submitted to us that his belief was that the Chairman, and I assume also by implication the members of the Tribunal, in that hearing, were also completely racialist. Again, no grounds were put forward otherwise than the failure of the application.(2) He referred to matters that occurred in Brighton. He seemingly did not refer in terms to Brighton in his application to the Employment Tribunal in this case, because in paragraph 54 the Employment Tribunal sets out the case as it was being put by the Appellant at that stage:
"After taking time for consideration the Tribunal concluded that the Applicant had put forward similar grounds as before, i.e. that he would not get a fair trial in Southampton Region because he had already had one case dismissed in the Reading Tribunal, which is in the same Region, and that the Tribunal in Southampton was prejudiced because of his colour. The additional ground relied on by the Applicant is today's decision to allow the Respondents to file the Notice of Appearance out of time, which the Applicant considers was further evidence of the racial bias of the Southampton Tribunal."
Then in paragraph 55 the Tribunal continued as follows:
"We have given reasons already for our decision to allow the Respondents the extension of time to file a Notice of Appearance, and these reasons in no way relate to the Applicant's race or colour. The Applicant has put forward no argument other than the bald assertion that the Southampton Region is prejudiced against him and that evidence of that is the decision made by a Reading Tribunal some time ago and, although he did not refer to it, presumably the Brighton Tribunal more recently."
Although it did not therefore appear to feature heavily, if at all, in the submission he made to the Tribunal below, the Appellant before us has relied upon what he now says were two applications in the Brighton Employment Tribunal both of which were found, he says, out of time, and both of which therefore was evidence, as he submits, of racial prejudice towards him by the members of the Brighton Tribunal. (3) He submits that the Tribunal below were or will have been prejudiced towards him because of his previous complaint of racialism against Reading, made, as I understand it, not to Reading but to Southampton in the context of seeking to persuade, by correspondence prior to the Tribunal hearing, the Southampton Tribunal to make the order which he repeated and unsuccessfully before the Tribunal on 11th January 2000, and also against the Tribunals generally because of his very applications made in correspondence; and he submits that because he has complained about racialism therefore effectively he would not get a fair trial in the Tribunals against which he has made such allegation or to whom he has made such complaints. (4) He submits that he did not have a fair hearing in the Tribunal below. As I have indicated earlier, he has given no chapter and verse of any such allegation, no reference to any conduct of any member of the Tribunal at all or any statement made, but when pressed originally he said he was not given any opportunity to be heard, but effectively in the end it became clear that he was simply saying that he was given less time than the Respondents and/or less time than he would have wished.[21]The basis of all that is that he submits that he cannot get a fair trial anywhere in the Southampton Region, which includes Brighton and Reading and, as I understand it, most of the south of England, and hence seeks a transfer to London, where, he submits, tribunal members are more likely to be able to know how to get on with black people, because there are more black people in the community with whom they have to rub along.[22]It is, in our view, extremely important that this application should be refused, in the absence of any specific allegation of conduct for us to consider. The administration of justice must be permitted to continue. There has been detailed consideration on the question of bias in the recent Court of Appeal decision in Locabail (UK) Ltd v Bayfield [2000] 1 All ER 65 , and any Tribunal which considers that it may have an adverse interest to any party is encouraged to disclose it if only so that it can be dismissed and condoned. But that is not what this Appellant is saying. Effectively he is saying that no-one who sits in a judicial capacity in the entirety of the Southern Region of the Employment Tribunals can be trusted not to be, as he puts it, a "complete racialist", and the only evidence he puts forward for that, is his three failures in circumstances of which we know nothing, in making applications in Brighton and Reading against other parties, and his failure on this occasion in front of this Tribunal, coupled with the fact that he has made complaints, and therefore it is suggested there will be prejudice against him simply because he has made a complaint. People clearly cannot pull themselves by their own bootstraps by making complaints, because otherwise there will be a self-fulfilling prophecy. If someone cannot be permitted on racial grounds to hear a case because a complaint has been made to or about that person, there will be encouragement to make those complaints in order to achieve that end.[23]It is clear to us that there is nothing whatever in the allegations made by the Appellant and no grounds whatever for considering a transfer of the matter to London, where, if he is right, he would no doubt be able to be in a position to make similar complaints, given that they are wholly unparticularised, as he has made in respect of those Tribunals before he has so far appeared or indeed might appear in that Region.[24]We hope, very sincerely, that he will come to appreciate, intelligent as he is, that he will give himself the best chance of achieving a result if he brings a good claim before the Tribunal and does so putting forward the merits of his case and not these kind of allegations, which have no substance that we have seen behind them at all.[25]The appeal is therefore dismissed.[26]The application by the Appellant for leave to appeal to the Court of Appeal is refused as there is no substance in law or in fact for us to grant leave.