DOGSTAR LEISURE LTD v MR F J PEREZ [2002] UKEAT 1038_01_2806

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1038_01_2806

Case No Appeal No. EAT/1038/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DOGSTAR LEISURE LTDAPPELLANT

MR F J PEREZRESPONDENT

Before

Mr Justice Lindsay

Date 28 June 2002

[1]APPEARANCES For the Appellant MR A J MERRETT (Representative) Dogstar Leisure Ltd Brookland Place Brookland Kent TN29 4RH For the Respondent MR S GILL (of Counsel) Nash & Co Beaumont House Beaumont Park Plymouth Devon PL4 9BD THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT ) I have before me the matter of Dogstar Leisure Ltd v Mr F J Perez . In this part of the case Dogstar appeals against the Registrar's decision striking out its Notice of Appeal for want of that Notice of Appeal having been amended in accordance with an earlier Order that the Employment Appeal Tribunal made on 23 January 2002. Today, the Applicant, Dogstar, has appeared by one of its directors, Mr Merrett, and Mr Gill has appeared for the Respondent former employee, Mr Perez.

[2]The history of the matter is that on 22 September 2000 an IT1 from Mr Perez against Dogstar was presented to the Employment Tribunal. It claimed unfair dismissal and breach of contract. On 19 October 2000 there was an IT3 from Dogstar. On 9 February 2001 there was a hearing at the Tribunal at London South. At the end of that there was an oral indication that Dogstar was held liable to Mr Perez. Summary Reasons were sent out to the parties, although they do not in fact form part of my papers. On 22 March 2001 Dogstar requested Extended Reasons of that decision, which was a decision that went only to liability. On 6 April 2001 the Employment Tribunal heard the case as to remedy. At that point the Extended Reasons which had been requested had not yet come forward. On 26 April 2001 the Tribunal gave Summary Reasons as to remedy. Dogstar was found liable to pay £2,118 in respect of the breach of contract for which the liabilities decision had found it liable, and £8,808.20 in respect of the unfair dismissal claim. On 17 July 2001 the Employment Tribunal sent Extended Reasons to the parties of the liability decision, of course confirming more fully that which had already been indicated in the Summary Reasons, although, as I said, the Summary Reasons are not amongst my papers.

[3]On 28 August 2001 a Notice of Appeal was received at the Employment Appeal Tribunal from Dogstar purporting to be an appeal both as to liability and remedy. It was some 5½ pages of typescript. It was within 42 days of the liability Extended Reasons being sent to the parties and, of course, at that stage there were no remedy Extended Reasons, so that in that sense, time (the 42 days measured by reference to the sending out of Extended Reasons of the remedy decision) had not even begun, let alone expired, although more than 42 days had expired after 26 April 2001.

[4]On 23 January 2002 there was a Preliminary Hearing at the Employment Appeal Tribunal, which was a panel of 3 of which I was the Chairman. The matter was considered only as an appeal against liability. In paragraph 7 of the Judgment I delivered on that day I said this:

"Now, considered as an appeal against the remedy decision of 26 April, the Notice of Appeal of 28 August is, of course, thoroughly out of time. It is also based only on Summary Reasons, which is contrary to our Rules. Dogstar did not, it seems, apply for Extended Reasons of the remedy decision until comparatively recently. Exactly when does not matter. We will not hear the appeal against the remedy decision at this juncture. We will await, first of all, the Employment Tribunal's final reaction to Dogstar's application for Extended Reasons. The position brought bang up to date (I think the last letter was dated only yesterday) was that the Employment Tribunal was inviting Dogstar to put in whatever reasons it had for explaining away the delay. If the Employment Tribunal declines to give Extended Reasons (perhaps because, for example, of the lateness of the Application) well then, Dogstar will need, no doubt, to take advice on that, but it can in principle then either ask the Employment Appeal Tribunal to proceed on the remedies decision even on merely Summary Reasons or (additionally or alternatively) can appeal against the Employment Tribunal's refusal to give Extended Reasons on the remedy decision. Of course, if there is to be an application to the Employment Appeal Tribunal it would be prudent for the Appellant to put in, in relation to the remedies decision and to the lodging of a Notice of Appeal relative to the remedies decision, as much information as it can as to why there was delay between 26 April and 28 August 2001. All that is a matter on which Dogstar will need to take advice and think before it proceeds."

So on that basis the matter continued as a Preliminary Hearing only as to liability. There were 2 areas in the Judgment where it seemed to the Employment Appeal Tribunal on that day that there was something that was at least arguable on Dogstar's part. The Notice of Appeal contained a good deal of material that was not appropriate to go to a Full Hearing. Just how far the 2 areas which the Employment Appeal Tribunal identified as arguable were within those 5½ pages of typescript was never debated. They were, perhaps, to some extent foreshadowed, but certainly did not clearly emerge. Accordingly, a Direction was given that only in what were called in the course of that Judgment, Area One and Area Two was there anything that was arguable and that only those areas could go forward. In paragraph 17 the Judgment says:

"As for the case in Areas One and Two, if Dogstar wishes to pursue them we will give Dogstar 14 days from the sending out to it of a transcript of this Judgment in which it may, if it wishes, formulate and serve on the Employment Appeal Tribunal and on the other party an Amended Notice of Appeal limited to either or both of Areas One and Two. Those are to be the only grounds to go forward. If the Amended Notice of Appeal goes outside those grounds it will not be heard as to the extraneous parts at the Full Hearing, at all events unless the Employment Appeal Tribunal at the Full Hearing expressly so decides. If no Amended Notice of Appeal is served within the 14 days that we have described then the Dogstar appeal will be dismissed thereafter without further notice."

An Order to that effect was drawn up dated 23 January 2002. I do not need to read it out as it very much follows the indication given in paragraph 17 which I have just read.

[5]The next stage in the chronology would seem to have been on 12 February 2002 I get that date from the Respondent's skeleton argument, helpfully provided by Mr Gill, 12 February being the date on which the Employment Appeal Tribunal sent out the transcript. So the time for amendment that had been referred to, both in the Judgment and the Order, would seem to be 14 days from 12 February and hence expiring on 26 February. On 24 February there was an indication from Dogstar which either was merely of a wish to amend or was of an amendment itself. One needs to look at the letter. It is from Dogstar to the Employment Appeal Tribunal. It refers to the Judgment of 23 January on the Preliminary Hearing. It says this:

"In accordance with the Court's Direction I wish to amend our grounds of Appeal solely to those designated by the Judgment as "

Area 1" and "Area 2". As also ordered in the Judgment we will be setting forth and serving Skeleton arguments 14 days before the date of the Appeal." It is signed on behalf of Dogstar by Mr Merrett. That was received by the Employment Appeal Tribunal on 26 February 2002 - hence on the last day of the 14 days - and it is stamped to indicate that it was then received.

[6]On 12 March 2002 the Registrar dismissed Dogstar's appeal as being out of time on the basis that the letter of 24 February was not compliance with the Judgment and Order of 23 January. The relevant part of the Order says:

"UPON receipt of a latter dated the 24 th day of February 2002 from the Appellant indicating a wish to file an Amended Notice of Appeal not being considered as compliance with the Order of the Employment Appeal Tribunal dated the 23 rd day of January 2002. IT IS ORDERED that the Appeal be dismissed pursuant to the aforesaid Order on the ground that an Amended Notice of Appeal has not been received at the Employment Appeal Tribunal 14 days after the transcript of the Judgment delivered on the 23 rd day of January 2002 was sent to the parties."

On 14 March, Dogstar indicated it wished to appeal against that striking out.

[7]I have, of course, heard argument for and against this morning. Mr Merrett says that the letter was meant to be a compliance with the requirement, that he is ignorant of the law and, in ignorance, thought that what he was doing and did was sufficient. He says that no one was harmed in the sense that there was no real prejudice to the Respondent and that Areas One and Two do indeed give rise to questions of some importance not only in this case, but, he says, in other cases. Mr Gill raises real doubts as to whether one can regard the letter of 24 March as a compliance with the Order. He makes it plain that in his view, and I see force in it, for the appeal to go forward with no clearer indication of the points permitted to be taken by Dogstar than that they are described as "Area One" and "Area Two", would not be fair to Mr Perez and his advisers and could well lead to adjournments and further costs before the matter was clarified, even supposing it was allowed to go forward.

[8]I need to remind myself of a number of points. First of all, this is not a case of the kind dealt with in Abdelghafar and Assiz v Bethnal Green in which there has not been a timely appeal, namely one not served within 42 days of the Extended Reasons. There is here, or was here, prior to the Registrar's Order, a Notice of Appeal that was in time so far as concerned liability. To that extent it is a situation other than the Abdelghafar or Assiz situations. Rather this is a failure simply to amend against the background of the Order, that was earlier made, that if there was no Amended Notice of Appeal within the prescribed time, then the appeal would be dismissed without further notice. If – and I underline the word 'if' – the letter of 24 March from Dogstar can be taken to be the lodging of an Amended Notice of Appeal, then, to judge from the time given by the Respondent's notice (which indicates there was a sending out of the transcript on 12 February) there would have been a timely compliance, albeit one left to the very last day.

[9]At this point of the argument therefore, time falls away as a matter that needs further to be looked at and the question becomes simply whether the letter from Dogstar of 24 March can fairly be taken to be the lodging of an Amended Notice of Appeal. A number of points need to be made in reference to that letter. First of all, it gave no indication that there was intended to be some later communication being prepared, or intended to be prepared, as an Amended Notice of Appeal in order to implement the "wish" which it expressed. It was therefore plainly intended to be an effective amendment of the Notice of Appeal. This is not, therefore, a case of any wilful or deliberate breach of the Order, rather that one is here dealing with a company acting through a director who has no legal qualification or experience. Moreover, the grounds which it refers to, Area One and Area Two, are not entirely unclear but have been, albeit only broadly, outlined in the Employment Appeal Tribunal's Judgment of 23 January.

[10]Given the latitude extended here to parties not having professional or qualified legal assistance, given the plain intendment of Dogstar to comply and the thought that it had complied with the Order, given the fact that there was an antecedent existing Notice of Appeal and we are dealing only with amendment, and having in mind also, as Mr Merrett put it, that no harm is caused in the sense that a Full Hearing of the Notice of Appeal has not yet been materially delayed by Dogstar's failure yet to set out its reasoning more explicitly, it seems to me that it would be right to regard the letter of 24 February as a form of compliance with the Order of 23 January. However, it is fair to the Respondent, Mr Perez, that he should be able to see, more clearly than he could at present be expected to, exactly how Dogstar intends to put its case. It is true that the letter indicates that skeleton arguments would be served 14 days before the date of the appeal. It is true therefore that, as Mr Merrett emphasises, he contemplated that the case would be further set out in more detail by way of skeleton, but, as skeletons come relatively late in the day, it seems to me that Mr Perez will be entitled to a more clear exposition of precisely what Dogstar's case within Areas One and Two is to be.

[11]Dogstar, as it seems to me, has already wasted time and money by not seeking professional legal assistance. It has now demonstrated that it has not got sufficient skills to deal with these matters on its own by Mr Merrett, who has no legal qualifications or experience. If the letter of 24 February is left without further clarification, then, looking forward, one could see that at the Full Hearing the Respondent is very likely to assert that the Appellant's case should have been further spelled out earlier and that there ought to be an adjournment at the company's expense in order that such clarification should be conducted before the case went further. If that came to pass, and one can see that it might, then the likelihood would be that Mr Perez's advisers would be saying that the costs of the adjournment thrown away should be borne by Dogstar. The likelihood would be that such costs would greatly outweigh the relatively minor costs of getting a solicitor or counsel to look at the Judgment at the Employment Appeal Tribunal to look at how Areas One and Two are framed, to look at the Notice of Appeal as it presently is and striking out that which is disallowed to go forward and to consider how far Areas One and Two can be tightened up into true assertions of arguable errors of law.

[12]It thus seems to me that it greatly behoves Dogstar to seek professional advice, if only to save further waste and costs. Especially, perhaps, is that so in that there has been communication from the Chairman of the Employment Tribunal on an aspect of the case that we have not come to yet, that indicates that the issue of guilt or innocence of Mr Perez was indeed material to his claim of breach of contract, although accepting that it was not immaterial to his case of unfair dismissal. That is a consideration that needs to be attended to, although there may be an issue as to whether the Employment Tribunal kept sufficiently separate its considerations of breach of contract and its considerations of unfair dismissal.

[13]I am not going to make an Order today as to the further amendment of the Notice of Appeal in the form amended by the letter of 24 February 2002 but I very strongly suggest that Dogstar should at last seek professional advice and seek to frame more accurately Areas One and Two so that it does not incur the risk that at a Full Hearing Mr Perez would be asking for an adjournment at the company's expense. It is not simply a question of clarifying Areas One and Two, it is also a matter of striking out the other parts which have been disallowed to go forward. Of course, if, on consideration with professional advisers, Dogstar concludes that Areas One or Two, or both, are not worth appealing – and that is a thing it might well feel right to do, that is a matter for Dogstar and its advisers – but if that is the case it would be well advised to take early steps to withdraw its appeal so as to limit waste and risk as to costs. Equally, if only one of Areas One and Two is thought worth going ahead with, it would be worth carefully limiting the Notice of Appeal, as further amended, to limit it to such smaller area as was advised could properly be taken further.

[14]Limiting myself to the appeal immediately in front of me, namely against the Registrar's Order of 12 March, I allow the appeal. The Notice of Appeal is restored as covering only Areas One and Two as identified in the Judgment of 23 January 2002 on the footing that the letter of 24 February can be taken to be a timely amendment. But – and I emphasise there is a but – with my indication already given that the company will be at real risk if further refinement is not attempted. Mr Justice Lindsay Mr Merrett, it really would be wise to take some advice because otherwise you are going to find yourself paying out more than you would wish. Mr Merrett Yes, I'll take your advice Sir. Mr Gill Sir, following from your decision and Judgment there is an application by the Respondent for the costs of today. Having regard to the finding that the letter of 24 February was sufficient compliance, it seems to me that I can argue, and do argue, that it was barely sufficient compliance and it was likely to result in the decision of the Registrar which was made, and these proceedings, being an interlocutory, as it were, appeal, has been unnecessarily caused by the way in which the Appellant has conducted or presented his case fully ………[inaudible] the judgment of the Tribunal of 23 January, it is highly likely that unless the Appellant does formulate further grounds, that the Respondent may take steps to do that, but this set of proceedings has been caused by a failure to identify issues……………………………… by the Tribunal on 23 January. Sir, that is my application for costs. Mr Justice Lindsay I will not make an order for costs because the appeal has been successful and it does not seem to me that the conduct of it can be described as vexatious or unreasonable or that the appeal itself was unnecessary or that otherwise a case falling within Rule 34 has been made out, so I will not make an order for costs.