MR O OLUKOGA v LONDON BOROUGH OF HACKNEY [2000] UKEAT 991_00_0311

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 991_00_0311

Case No Appeal No. EAT/991/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR O OLUKOGAAPPELLANT

LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Charles Ms G Mills Professor P D Wickens

Date 3 November 2000

[1]APPEARANCES For the Appellant MR OLU OGUNNOWO (Solicitor) Instructed By: City Legal Associates Wickham House 10 Cleveland Way London E1 4TR For the Respondents MR STEPHEN HEATH (of Counsel) London Borough of Hackney Legal Services Department 183-187 Stoke Newington High Street London N16 OLH MR JUSTICE CHARLES : We have before us two appeals in this case. The parties are a Mr Olukoga who is the Applicant in the proceedings below and the London Borough of Hackney. The Applicant is the Appellant in both appeals. The First Appeal

[2]The first appeal is against an Order made by a Chairman of an Employment Tribunal sitting alone at London Central on 26 July 2000 that the Applicant do provide the further and better particulars requested by the Respondents on 5 June 2000.

[3]The Applicant's claim was a claim for constructive dismissal. Box 11 of the Originating Application sets out the detail of the Applicant's complaints and that box, in four paragraphs, makes serious allegations against the Respondents in general terms. The making of that claim had been preceded by a letter, which can be described as a letter before action dated 24 January 2000, written by an organisation called City Legal Associates who have represented the Applicant today. As appears from the notepaper of that organisation its partners, or members, have legal qualifications. That letter puts more flesh on the serious allegations that were later made in the Originating Application.

[4]The Respondents put in a Notice of Appearance dated 24 March, which is a five-page document, it addresses the allegations made by the Applicant in his Originating Application. Further I accept the submission made on behalf of the Applicant, that it is likely that the person who drafted that Notice of Appearance would have had regard to the content of the letter of 24 January 2000. Be that as it may, it appears to me that any lawyer representing the Respondents would have sought further and better particulars of the serious allegations being made against employees and officers of the Respondents (the London Borough of Hackney) within the Originating Application. They include an allegation of bad faith and (if I can so put it) of extreme unreasonableness. We were referred to two authorities as to the purpose behind making an order for further and better particulars. In my judgment, they accord with the general approach in other jurisdictions whilst having regard to the informal nature of proceedings before an Employment Tribunal. The two cases we were referred to were Byrne and Others v The Financial Times Ltd

[1991] IRLR 417

and an earlier case of White v The University of Manchester

[1976] IRLR 218

. In that case we were specifically referred to part of the headnote which states as follows:

"Whilst unnecessary legalism in Industrial Tribunal proceedings should be avoided, it should not be avoided at the expense of falling into the error of doing injustice by a hearing taking place when the party who has to meet the allegations does not know what those allegations are. Commonsense and goodwill involves, in anything except the simplest of cases, giving, when it is asked for, reasonable detail about the nature of the complaints which are going to be made at the Tribunal."

[5]Here, as I have said, there are serious allegations made in the Originating Application. Following the request for further and better particulars the Applicant's advisers wrote a letter dated 14 June 2000 in response to that request. That letter is addressed to the London Borough of Hackney Legal Services and is in the following terms:

"Dear Ms Babb Thank you for your letter of 05 June 2000 requesting further and better particulars on our client's application. We note your lack of knowledge of the build-up to the originating application which may have led to the instant request. Our letter of 24 January 2000 to your Lynette Greenway gives a concise detail of the background to the allegation levelled in the originating application. By their very nature, such applications are required to be of reasonable brevity as to be probative of the cause of action, which is the justification for the letter before action referred to above. Given the fact that this letter was duly acknowledged by the addressee on 31 January 2000 and that it has been passed to yourselves, we are able to presume knowledge of its content on your part, and on which further references should be made in answer to the points raised in your request. We are attaching a copy of the said letter out of courtesy for your attention but should you choose to submit formal application in this regard, we would be requesting a hearing thereon and would direct the Tribunal to the question of cost in that regard."

[6]As appears from that letter and, as has been argued before us today, the Applicant, who has been advised since at least 24 January 2000, asserts that the request for further and better particulars was unnecessary because it is said the Respondents knew what the Applicant's case was from the Originating Application and the letter of 24 January. In the Notice of Appeal and in argument the Applicant, through his advisers, has gone further and said that the request was abusive. In addition, in argument before us, the Applicant's representative has pointed to the detail of the Respondents' Notice of Appearance to demonstrate, so it was asserted, that the Respondents knew perfectly well the case they had to meet.

[7]When we invited the representative of the Applicant to identify how he said the letter of 24 January 2000 answered the request for further and better particulars that was made and showed that the Respondents would know the case they had to meet and, for example, to know what witnesses they should produce before the Tribunal, the Applicant's representative was unable to do so, either by reference to the letter of 24 January 2000 or that letter read together with the Notice of Appearance. Indeed, when he pointed to paragraphs in the letter which, he said, showed what his client's case was, he then expanded upon and explained additional matters in respect of that case using those paragraphs as a starting point. These submissions confirmed the view which, to our mind, is apparent from reading the letter, either alone or together with the Notice of Appearance, that it simply does not provide the further and better particulars sought, albeit that the request is drafted in a form more commonly seen in the Queens Bench or Chancery Divisions.

[8]In our judgment, applying the approach in the White case I have referred to and asking whether the Respondents reasonably required the information sought so that there could be a fair trial and that proper preparation could be made for that trial, the answer is that they did reasonably require that information. The stance taken on behalf of the Applicant is one which advocates "trial by ambush" and is not one that promotes fairness.

[9]Fairness in proceedings is a two-way street and it is incumbent upon both sides to provide the other with information enabling them to properly prepare for the hearing and to properly present their case at the hearing. For example, in this case it may have been that in responding to the request for further and better particulars the Applicant would not have had sufficient documentary material to provide a full answer. However he then could and should have answered as best he could and sought discovery or referred to particular documents which he understood to be within the possession of the Respondents and they could and should have provided such documents (if they had them in their possession or power). That is speculation. The position was taken, on advice, that the Applicant simply would not answer at all on the basis that the Order was one that should not have been made. It follows from what I have said that, in our judgment, the submissions made on behalf of the Applicant that the request for further and better particulars should never have been made and that the Chairman should never have made the Order are wrong.

[10]A further point, of course, arises on this appeal. Even on the assumption that there was more to the arguments advanced on behalf of the Applicant than we consider is the case, to succeed on this appeal the Applicant would have to show that the Chairman had acted outside the parameters of the wide discretion that a Chairman has in these circumstances, or that he had taken into account a matter which he should not have done or failed to take into account a relevant matter.

[11]In our judgment, even on the hypothesis I have just mentioned, the Applicant is simply not able to show such grounds. There is nothing to indicate that the Chairman did not take into account the points that were being put before him and that he was not aware of the existence of the Notice of Appearance, which was not a point being advanced vigorously at the time. It seems to us that his decision was well within the range of decisions open to a Chairman. It follows that the first appeal is dismissed. Further, it follows from what we have said that in our judgment this appeal was always hopeless and in the terms of Rule 34 of our Rules was an unnecessary and improper appeal. The Second Appeal

[12]The second appeal is against a decision of an Employment Tribunal sitting at London Central on 20 September 2000. The Extended Reasons for which were sent to the parties on 2 October 2000. That decision was that:

"The case should be struck out because of the Applicant's failure to comply with an order for Further and Better Particulars."

[13]That Order for further and better particulars is the order which is the subject of the first appeal with the variation thereto that by letter of 30 August the Chairman of the Employment Tribunal extended the time for compliance with that Order to 7 September 2000. The Chairman wrote that letter, having had regard to a letter dated 7 August from the Applicant's advisers inviting him to set the Order for further and better particulars aside.

[14]The Notice of Appeal in respect of the Order for further and better particulars was also dated 7 August 2000. It follows that as a matter of timing the Employment Tribunal took the stance that its Order of 26 July that further and better particulars be given by the Applicant remained to be complied with in a period after the launching of the appeal against it. This is something which would have been quite apparent to the Applicant and his advisers from the letter of 30 August simply extending time. The Applicant and his advisers took no steps to seek a stay of the Order for further and better particulars. I should add that the letter of 7 August that was written by the Applicant's advisers to the Employment Tribunal in its second paragraph said this:

"We submit forthwith our application for the said order to be set aside, without prejudice to our client's right to pursue a concurrent application before the Employment Appeal Tribunal appealing against the order."

As is apparent from what I have said, the Applicant did take that concurrent course.

[15]The letter of 30 August from the Employment Tribunal to the Applicant's advisers contained the following paragraphs:

"It is the Chairman's considered view that the Respondent is entitled to the particulars it seeks, so that it can know the case it has to meet. The allegations in the Originating Application lack clarity and detail. For example, the applicant has [not] identified those employees of the respondent against whom the complaint is made. This makes it difficult for the Respondent to know which witnesses it will need to call at the hearing. The Applicant must give the Particulars ordered by the Tribunal. Time is extended for compliance with the order to 7 days from the date of this letter."

As is apparent from our conclusion on the first appeal we agree with the Chairman's views as to the reasonableness of the request.

[16]On 13 September the Employment Tribunal wrote to the Applicant's advisers in the following terms:

"I refer to the Tribunal's Order for Particulars dated August 30 2000. A Chairman of the Tribunals has asked me to write to you. Under power conferred by Rule 4(7) of the Employment Tribunals Rules of Procedure 1993, the Chairman is considering whether to strike out the whole or part of the Originating Application for failure to comply with the Order. If you wish to give reasons why this should not be done, please send them to me in writing within 7 days of the date of this letter."

[17]We pause to comment that the date for the substantive hearing of the application had been set for 20 and 21 September 2000 on the 19 May 2000.

[18]Promptly in response to that letter the Applicant's advisers replied in the following terms, on 14 September:

"We refer to your letter of 13 September, requesting cause why the above matter should not be struck out. It was our assumption that the Tribunal was on notice that the matter is now before the Employment Appeal Tribunal on the question of interlocutory reference and is being dealt with under their reference EAT/0991/00/ED. Perhaps, the Chairman and indeed, the Tribunal would exercise some restraints pending the outcome of the appeal to which reference has been made."

[19]The advisers of the Applicant wrote again on 18 September, which was a Monday, in the following terms to the Employment Tribunal:

"We refer to the notice of hearing of the above matter listed for 20/21 September 2000. As there is an interlocutory application relating to the matter before the Employment Appeal Tribunal, we wonder if you could confirm that the hearing has been vacated till the issue on appeal is decided."

No response was received to that letter in correspondence and the Applicant's adviser today told us that he was certainly unaware of any response confirming that the hearing was going to be vacated.

[20]Before turning to the Extended Reasons, I pause to consider the position that has so far been reached. The position is that the Respondents have sought and obtained an Order for further and better particulars of the Applicant's case to enable them to properly prepare for the hearing. The stance of the Applicant through his advisers is, and has been, that there is no need for those particulars to be given and the hearing can proceed perfectly fairly and adequately without them. So the Applicant's position is that there is no need for any further interlocutory step, the parties can be perfectly ready for the proceedings on 20/21 September and there is no need to answer the further and better particulars.

[21]In this context it is relevant to turn now to the Extended Reasons which set out part of the history and, in particular, the first paragraph thereof which sets out the directions that had been made on 19 May. The first paragraph is in the following terms:

"On 19 May 2000 at a Directions Hearing this case was set down for hearing on 20-21 September 2000. Directions were made that documents on which the parties intended to rely should be prepared and exchanged by 31 August 2000, and that witness statements should be prepared and exchanged by 12 September 2000. The Applicant did not appear nor was he represented."

[22]Pausing there, Rule 9 (3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 provides:

"9 (3) If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8 (5) and any written answer furnished to the tribunal pursuant to rule 4 (3)."

Rule 4 (3) is in the following terms:

"4 (3) A tribunal may, on the application of a party made by notice to the Secretary or of its own motion, require a party in writing to furnish to the tribunal a written answer to any question if it considers - (a) that the answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and (b) that it would be likely to assist the progress of the proceedings for that answer to be available to the tribunal before the hearing and may appoint the time within which the written answer is to be furnished. Upon that imposition of such a requirement, the Secretary shall send a copy of the requirement to each other party; and he shall send a copy of the answer to each other party."

As Rule 9(3) indicates Rule 8(5) refers to representations in writing.

[23]There is a link or potential link or overlap between Rules for 4 (1) and (3). Rule 4 (1) is in the following terms:

"4 (1) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion – (a) require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto, (b) require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a country court, and may appoint the time at or within which and the place at which any act required in pursuance of this rule is to be done."

Rule 4 (7) which underlies the letter written on 13 September, is as follows:

"4 (7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."

[24]Paragraphs 2 (3) and (4) of the Extended Reasons set out history relating to the application and the Order for further and better particulars. Paragraph 4 refers to the requirement sent pursuant to Rule 4 (7) that the Applicant do give reasons why the Employment Tribunal should not strike out the whole or part of the Originating Application for failure to comply with the Order for further and better particulars. Paragraph 5 refers to the letter of 14 September from the Applicant's advisers and quotes from it. Paragraph 6 is important, it says:

"6 Subsequently Tribunal staff telephoned the City Legal Associates advising that the case would go ahead and be heard on 20 September 2000."

There then appears to be a transcription error in the Extended Reasons in that the subparagraphs numbered (1) and (2) are out of place. The Extended Reasons should we think then read as follows, from paragraphs 7 to 10:

"7 Miss Maclaren asked for the case to be struck out (1) for failure to comply with the order for directions (2) for non attendance. She told us that the Respondents complied so far as they were able with the order for directions and that a list of documents and the documents themselves had been sent on 3 July to City Legal Associates, although nothing had been received in return. 8 A number of calls had been made to City Legal Associates to discuss the exchange of witness statements which was due to be done on 12 September 2000. However, no response was received from CLA. The Respondents faxed a letter to CLA on 19 September 2000 but received no reply. 9 The Tribunal has the power under Regulation 4 (7) of the 1993 Regulations to strike out the whole part of the Originating Application where that party does not comply with an order made under Regulation 4 (3) (1) requiring it to furnish further particulars of the grounds on which that party relies. 10 We are satisfied that the Applicant has deliberately failed to comply with the Order of 13 September 2000 and the application is struck out."

The reference there to the Order of 13 September 2000 is, in our judgment, an obvious transcription error because what is being referred to is the Order for further and better particulars. September 13 is the date of letter giving the requirement under Rule 4(7) and refers to an order for particulars dated 30 August 2000 (which was the date when time was extended for compliance with the Order for further an better particulars dated 26 July 2000).

[25]The issue that is before us in the second appeal is whether in making that order striking out the application the Employment Tribunal have erred in law, in the sense that they have either made a decision which is outside the parameters of the discretion open to them, or have taken an approach which has had regard to factors which they should not have taken into account or has left out of account relevant factors.

[26]It is clear that in reaching that decision the Employment Tribunal have had regard to the fact that there was a pending appeal against the Order for further and better particulars and the point made on behalf of the Applicant that in those circumstances, as the Applicant put it, they should " exercise some restraints pending the outcome of the appeal to which reference has been made " because they cite that sentence in paragraph 5 of the Extended Reasons

[27]In this context the timetable is important. In particular, this includes the point that after the appeal was launched and in response to the application essentially to review and set aside the Order for further and better particulars, that Order was confirmed and the time for compliance extended to 7 September 2000.

[28]A further aspect of the background, which in large measure must have underlaid the letter of 18 September from the Applicant's advisers asking for confirmation that the proceedings would not go ahead on 20 September is Rule 9(3) although it is not expressly mentioned as a basis for the decision to strike out in the Extended Reasons. But the fact that the Applicant's advisers were not present is mentioned therein and one of the grounds for the submission that the case be struck out was non attendance.

[29]However as expressed in paragraph 10 of the Extended Reasons, the reason for the decision to strike out the claim was deliberate failure to comply with the order of 13 September 2000, which as we have said in our judgment is a reference to the Order for further and better particulars.

[30]Looked at in isolation we are of the view there is force in an argument that it would be too harsh to strike out for non-compliance with an Order for further and better particulars, which was the subject of an appeal, even though no application for a stay had been made and the relevant party was represented.

[31]However, in the context of this case, it seems to us that in the exercise of their discretion under Rule 4 (7) the Employment Tribunal were entitled to have regard to the background we have described, namely that the Applicant's position was that those further and better particulars were not necessary and the case could simply proceed without them, but the Applicant had failed to provide any Witness Statement or any bundle of documents and had failed to attend before the Employment Tribunal.

[32]In those circumstances, although we would accept that some criticism might be made of the language of paragraph 10 of the Extended Reasons it seems to us that the conclusion reached by the Employment Tribunal, although a harsh one for the Applicant, is one that was within the ambit of their discretion and, indeed, one that was justified.

[33]The position the Employment Tribunal were faced with on 20/21 September was of an Applicant who was refusing to comply with an Order for further and better particulars, albeit that was the subject of an appeal, and who had failed to attend in circumstances in which certainly no indication had been given by the Employment Tribunal to the Applicant that the hearing was not going to go ahead and, indeed, as is apparent from paragraph 6 of the Extended Reasons, in circumstances when the Tribunal staff had telephoned the Applicant's advisers advising that the case would go ahead and be heard on 20 September 2000.

[34]The Applicant's adviser was not in a position to give us further information about that. At one stage he seemed to be indicating that messages had been left on answering machines but then it became less clear what had happened.

[35]The position however, was that when this matter came on before the Employment Tribunal the Applicant had not complied with an Order for further and better particulars. The stance that he was adopting was that there was no need to comply with that order to enable the case to go ahead and be heard on a full basis, but the Applicant took the decision with the benefit of advice not to attend before the Employment Tribunal.

[36]In those circumstances, in our judgment, the conclusion reached by the Employment Tribunal to strike-out the case by reference to Rule 4 (7) was one which they were entitled to make and one in respect of which they did not err in law.

[37]Accordingly, the appeal against the decision to strike-out these proceedings is also dismissed.