MS J GRIFFIN v BUSINESS EMPLOYMENT SERVICES TRAINING LIMITED [2001] UKEAT 0161_01_2610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0161_01_2610Case No Appeal No. EAT/0161/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J GRIFFINAPPELLANTBUSINESS EMPLOYMENT SERVICES TRAINING LIMITEDRESPONDENT
Before
His Honour Judge J R ReidDate 26 October 2001
[1]APPEARANCES For the Appellant MS JAYNE PHILLIPS (Solicitor) Messrs Morrish & Co Solicitors First Floor Oxford House Oxford Row Leeds LS1 3BE HIS HONOUR JUDGE J R REID QC This is the Preliminary Ex Parte Hearing of an appeal by the Applicant, Ms Griffin, against a decision of an Employment Tribunal held at Leeds on Monday 11 December 2000. By that decision the Tribunal, which consisted of a Chairman sitting alone, ordered that the application which Ms Griffin had made and which was by this time a claim for disability discrimination should be struck out.[2]The factual background is this. That there was a hearing for directions on 13 October at which a Chairman directed that the Applicant should file an amended Originating Application by 27 October and disclose the medical evidence on which the applicant intended to rely by 31 October. The directions made it clear that the time limit set could not be varied except by the leave of the Tribunal. The Applicant failed to comply with either direction within the time limit. On 2 November, the Respondent's solicitors made an application for an order that the Applicant, having failed to comply with the directions, should have her application struck out. Pursuant to Rule 13(3) the Applicant was then given the opportunity to attend to show cause why the order should not be made.[3]On the showing of cause, the solicitor acting on behalf of Ms Griffin, accepted that there had been a failure to comply with the directions. She apologised for the failure and attributed it to an error on the solicitor's part in making a diary entry regarding the directions. She could not explain the error. She accepted that there had been fault on her part. She asked the Tribunal not to penalise the Applicant. She submitted that the directions had been complied with, albeit belatedly, there was no real prejudice and that if the application was struck out the applicant would suffer severe prejudice.[4]The Chairman expressed the view that the Applicant was in flagrant breach of the directions given. He said:
"Bearing in mind the clear terms of the directions and the fact that the applicant's solicitor is a regular practitioner before the Tribunal I am satisfied that she must have been aware of the possible consequences of a failure to comply with the directions. Moreover, the explanation given does not, in my view properly explain the failure. Finally, the medical report which was served was virtually useless. This was hardly surprising given the way in which the letter of instruction had been worded."
He then went on and said:
"I have to balance the injustice which may arise from the order I make. If I do not strike out the application, the respondent will suffer prejudice. If I do strike it out, it is the applicant who will suffer. However, I am satisfied that justice requires that I do make the order. The applicant is not left without a remedy. As the striking out arises from the fault of her solicitor, she will be able to seek redress elsewhere. The respondent does not have that luxury. Accordingly I make an order striking out ……"
It is against that decision which Ms Griffin appeals.[5]The basis of the appeal is, firstly, that the failure to comply with the order can hardly be said to be a contumelious one, it can hardly be said to be flagrant, it was simply a mistake. Then it is said, that there has to have been, as an alternative ground to striking out, inordinate and inexcusable delay which gives rise to a substantial risk that it will not be possible to have a fair trial or that there is a likelihood of prejudice.[6]The Chairman, in the concluding paragraph of his decision, did point out that the Respondent would suffer prejudice. The prejudice that the Respondent would suffer would be that of being deprived of a limitation defence. If the matter was struck out for failure to comply with the directions it would not be open to Ms Griffin to re-start separate proceedings. In those circumstances, in our judgment, it was perfectly permissible for him to find that there was prejudice. He then had to balance the positions of the two sides and he was perfectly entitled to find that since Ms Griffin would have a remedy elsewhere (for what it was worth, because I have to say that the view of the Tribunal is that, on the face of the papers, the claim appears to be a very thin one) she could pursue that remedy elsewhere. In our judgment there is no error of law displayed in that. It was a decision to which the Tribunal were perfectly entitled to come. It should not, in our judgment, be disturbed.[7]It was suggested that as a further point the case should go to a Full Hearing because the Applicant would wish to argue that the striking out was a breach of Article 6, ie the right to a fair trial. In our judgment that is a wholly unfounded suggestion. She had a perfectly good right to a fair trial. Because she failed to comply with the directions of the Court which would have enabled that trial to take place she has had her claim struck out. It cannot, in our judgment, be sensibly suggested that there is any argument for saying that there has been a breach of Article 6. In those circumstances , it seems to us, that this appeal would be hopeless and it should be dismissed at this stage.