MR S ADEBAYO-OREBOTE v SUREWAY PARKING SERVICES LTD [2001] UKEAT 1242_00_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1242_00_0712Case No Appeal No. EAT/1242/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S ADEBAYO-OREBOTEAPPELLANTSUREWAY PARKING SERVICES LTDRESPONDENT
Before
His Honour Judge D PugsleyLord Davies of CoityDate 7 December 2001
[1]APPEARANCES For the Appellant MR OGUNNOWO (Solicitor) Messrs Chiltons Solicitors Refuge House 9-10 River Front Enfield EN1 3SZ For the Respondent MISS L SEYMOUR (of Counsel) Messrs Pictons Keystone 60 London Road St Albans Herts AL1 1NG HIS HONOUR JUDGE D PUGSLEY This is a case where we want right away to say that as we looked at this case we can see absolutely nothing wrong that the Respondents have done and we understand their frustration in this matter.[2]The history of the matter is set out in the judgment of Ms Recorder Slade QC which shows that this is a case where a complaint of unfair dismissal by the Appellant had been considered and dismissed. That came before the Employment Appeal Tribunal first for a Preliminary Hearing in which I presided and then it was the subject of a decision by Mr Justice Maurice Kay, Mrs Palmer and Mr Springer MBE, which allowed the appeal.[3]That case was listed before the Employment Tribunal sitting at London Central on 31 July 2000. The Respondents attended with witnesses and counsel. According to the decision made by the Tribunal at 09.05am they received a message from the Applicant's solicitor that he was unwell. He had phoned and according to the Tribunal's decision had said:
"He would be unable to attend the hearing this morning as he is sick (suffering from hay fever). He had tried to contact the Applicant and the Respondents' representative but was unsuccessful. He will fax his reason for not being able to attend later."
The Applicant himself did not attend nor was a fax sent. The Tribunal clerk attempted to telephone the Applicant's representative's firm and was told by the telephone operator that there was no one at the office at the time, it was 10.25am. No fax had been received from Mr Ogunnowo or his office. At 10.51am the Tribunal struck his decision out. They did so pursuant to Rule 9.[4]An application was then made by Miss Seymour for costs. The Tribunal allowed that saying that:
" the Applicant, both personally and by his representative, has acted unreasonably in failing to attend today's hearing."
We accept Miss Seymour's suggestion that we should not see as part of the finding of the striking out the conclusion that they had acted unreasonably in failing to attend because that was made in relation to the costs hearing which was, first, that there was a decision to strike out and only later did she apply for costs.[5]We are deeply troubled by this case. We wish to make it clear that we are not a fact finding body. We are dealing with this case on the basis that what we have been told by the Applicant's solicitor and what is in the Appellant's affidavit is true. It will be for the Tribunal to decide whether the account we have been given is true. They will have to decide as a fact what we, for the purposes of this appeal, are assuming.[6]The Applicant's solicitor suffers from hay fever. He took a common medication to which he had an allergic reaction. He telephoned the Tribunal at 09.05am to say he would be unable to attend and to say that he had tried to contact his client and the Respondent's representative but was unsuccessful. He said he would fax his reasons. Unfortunately he did not do so. Meanwhile the Applicant instead of going to the hearing at Woburn Place came to the Employment Appeal Tribunal premises and by the time he had realised his mistake and arrived at Woburn Place his case had been struck out.[7]We have to say that we find some of the contentions in the Appellant's skeleton argument based on a misapprehension as to our powers. The central thrust of the Appellant's case, as identified by the Preliminary Hearing of this Tribunal, is that the discretion of the Tribunal was not exercised judicially in the light of the history of the case, the illness of the Respondent's representative and the time when the decision to dismiss was taken.[8]Miss Seymour in a most careful argument has urged on us that there is an ambiguity about the Appellant's position as to whether the decision to strike out the claim was an error of law or whether the decision should be overturned because of the further explanations which have now been put forward.[9]In brief her argument is that on the basis of the information before them the Employment Tribunal exercised their discretion in a proper way. They had not received a fax confirming the representative's position and the Applicant had failed to appear. The Tribunal only struck the case out nearly an hour after the case was scheduled to commence and the discretion was exercised reasonably.[10]In that the Appellant seeks to adduce evidence for the unhappy situation which arose, Miss Seymour submits that we should not receive it. She submits that the appropriate remedy is for the Appellant to seek a review of the Tribunal's decision and it is an abuse of process for us to consider on an appeal a matter which should have been dealt with by way of review. In any event Miss Seymour submits that there are cogent reasons for questioning the account which is now being put forward as the explanation for the non appearance of the Applicant and his representative at the appointed time and place.[11]We accept that as a matter of common sense as well as professional obligation it would have been sensible for the Appellant's representative to seek a review and to give his explanation for the non appearance of himself and his client at the first available opportunity.[12]The failure of litigants to appear at the time and place required is a justifiable source of judicial irritation. Experience in other areas of litigation shows that parties are often late. We are concerned that the Tribunal acted in a peremptory manner in dismissing this case when they had notice that the Appellant's representative was unwell. There was a simple and sensible expedient for this Tribunal to have adopted which was to have adjourned this case for the applicant to show cause why this case should not be struck out for want of prosecution. We do not consider it is a proper exercise of judicial discretion to strike out a case for non appearance when a solicitor has telephoned to say he is not in a fit condition to attend a hearing. A failure to confirm this by fax has to be seen in the context of the options available to someone who is incapacitated. Striking out in these circumstances is a matter that causes grave concern. If a solicitor or indeed any responsible person informs a Tribunal that they are incapacitated through illness we do not consider that explanation should be rejected without clear and cogent reasons[13]An issue has arisen as to the form of our Order in view of allowing the appeal. We are well aware that Miss Seymour wants to address us on appealing our principal conclusion that there is an error of law in the way in which the Tribunal exercised its discretion in striking the case out. Having made it quite clear that we will hear her argument on its merits there has been discussion as to what the appropriate order should be[14]Miss Seymour has said that she would consent, subject to her application for leave to appeal on the principal issue, for us making an Order that the case be remitted to the same Tribunal for a review of its decision. If it was not practicable that it could be the same Tribunal – it may be that the members or Chairman may no longer be available to sit – then that would be a matter for the Regional Chairman to determine.[15]It is apparent from the body of our decision that what we want to happen is for a fact finding Tribunal to hear from the Applicant and, if appropriate from his solicitor, as to exactly the reasons for his non appearance.[16]Miss Seymour has indicated that her clients are prepared, for that purpose and that purpose alone, not to take any issue on the Order that we make, subject, of course, to us hearing her as to whether we give leave to appeal to the Court of Appeal on our principal finding which was that in our view, on the facts as we saw them to be before the Tribunal, they were in fact precipitate in making their decision. We therefore direct that the case be remitted for the Tribunal to review its decision as to the strike out.[17]We do not give leave to appeal to the Court of Appeal. We believe that the way in which we approached this case, a common sense, pragmatic way, was to say, as we did, that in our view it was an error of law on the Tribunal's behalf to act precipitately.[18]We believe that it was perfectly appropriate in this case to ask the questions that we did, to find out what the explanation was. We have left it open to another Tribunal to decide whether in fact they accept that explanation. They are the fact finding body. We cannot see that we have erred in law. We have no doubt in our minds that this is not a matter that should go to the Court of Appeal on either of the two very sophisticated and subtle grounds which have been put before us. However, we are resigned to being rebuked if we are wrong in refusing leave.[19]We do say to the Applicant and his solicitor that really the failure to appear has dramatic and draconian consequences. There has been an unhappy chapter of accidents in this case preceding this matter and we hope that whatever else happens in this case there will be no cases of non appearance or misunderstanding as to where the hearing is being held and when.[20]We do not accede to Miss Seymour's application for costs of today. The Appellant was given leave to appeal and we have found in his favour. In the exercise of our discretion we do not consider it is appropriate to award costs against him. The Tribunal which hears the review has yet to make a determination about the reasons for the non appearance of the Applicant and his solicitor and has powers to make appropriate award of costs if they consider that is appropriate.