MRS L A PREEDY v HMO GIDDY T/A EASTERHILL FURNITURE [2003] UKEAT 0287_03_1505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0287_03_1505Case No Appeal No. EAT/0287/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L A PREEDYAPPELLANTHMO GIDDY T/A EASTERHILL FURNITURERESPONDENT
Before
His Honour Judge J McMullenDate 15 May 2003
[1]APPEARANCES For the Appellant WRITTEN REPRESENTATIONS ON BEHALF OF THE APPELLANT For the Respondent WRITTEN REPRESENTATIONS ON BEHALF OF THE RESPONDENT JUDGE J McMULLEN QC : I changed the listing order this morning in order to deal with Mrs Preedy's case first, because this appeal was expedited by His Honour Judge Peter Clark on the ground that the hearing is due to commence on 19 May before the Employment Tribunal on the Respondent's application for costs. I gave my decision to dismiss the appeal and said I would give my reasons at the end of my list and here they are. I will refer to the parties as Applicant and Respondent.[2]I have read written submissions from both parties. The case has a long procedural history. The Applicant alleged constructive dismissal, had her case dismissed by the Birmingham Employment Tribunal, had her appeal allowed against that decision and has now had her case, remitted for re-hearing, dismissed again by a differently constituted Employment Tribunal at Birmingham.[3]At the end of the oral hearing and the in writing the Respondent sought costs. In November a costs hearing was listed for 12 February 2003. The Applicant in the meantime appealed against the substantive decision of the second Employment Tribunal but on 24 December 2002 the appeal was not entertained, pursuant to the Registrar's decision under Rule 3. That matter has been taken no further.[4]The Applicant applied for an adjournment on 29 January 2003 of the application for costs on the ground that her mother had serious ill-health involving stomach cancer and would have only weeks to live. Thus, for the eight weeks for which she was asked to produce dates, she was unable, at least for the first four, to provide any. The hearing was postponed and a further notice was issued seeking available dates during May. As is common practice, dates were canvassed.[5]On 18 February Mr Preedy, who has represented his wife throughout, said this:
"I have been advised by the Serious Fraud Office in the case of Regina v S Henchliffe & C Harrison , Central Criminal Court, I am a witness and the defence has asked that all witnesses be made available to appear in court. The current estimate of the length of the case is 3 months, I am expected to be called to give evidence in the period 28 th April to July 2003. I will advise the Tribunal of any changes in my circumstances and also the previously advised situation of Mrs L.A. Preedy."
Following that letter on 27 February the Chairman decided that the case would be listed in May and said this:
"If the Applicant wishes to be represented then she must choose someone who is available."
[6]It is against that decision of the Chairman that the Applicant appeals. I am hearing this case under Section 28(4) of the Employment Tribunals Act 1996 , ie Judge alone. The grounds of the appeal include the following: that the Applicant's mother was going into hospital on 19 March and she says:
"Under which regulation is the ET allowed to dismiss my representative over the last 3 years. Under which regulation can the ET force an applicant to choose someone else as their representative which in this case would be a solicitor. I presume the court will pay for these extra costs."
[7]The postponed hearing was listed for Monday 19 May at 9:45 am. Written response was given by the Respondent on 20 March 2003. In it is this:
"... it was suggested on the part of the Applicant that the Applicant's Representative may be unavailable due to the possible commitment of attending another Court as a witness. This led to the Tribunal directing that this case be relisted for hearing and if it conflicted with the Applicant's representative's other commitments then the Applicant may need to be represented by another. In our view that is a perfectly reasonable direction well within the powers of the Tribunal. . .. There is no serious evidence that the Applicant or the Applicant's Representative will be unable to attend the hearing listed for 19 May, 2003. The Applicant's representative has not produced evidence that he will be unavailable on that date because he has been summoned by another Court to appear as a witness. His argument is that he might be so called. Even if he is that is the classic case where another representative must be found. It happens in the legal profession quite often and whilst it may not be the most desirable course, changing representatives is preferable to the injustice caused by delay. We note that the question of the Applicant's Mother's illness is again raised in the letter of 4 March 2003. With the greatest of respect to the Applicant's Mother, and the problems she faces, there is no real evidence to suggest that the Applicant and her Representative are unable to attend the hearing on 19 May 2003."
[8]The case was sent to a full hearing by Judge Peter Clark, not I think because it was his judgment that this case showed a reasonably arguable prospect of success, but rather that in order to accommodate the appeal within time, it was impractical to hold a preliminary hearing and then a full hearing.[9]It seems to me that the Applicant's written case is misconceived. The Applicant is not being denied a representative, nor is it impossible for her to attend on the material which is now before me.[10]The practice of Tribunals and Courts is often to allow for representation of choice, but consistent with that principle is the principle that justice must be carried out as quickly as possible, since it involves not only the Applicant in this case, but the Respondent and the administrative resources of the Birmingham Employment Tribunal. Three months' notice of the hearing was given, it having been postponed once.[11]This case dates back to the Applicant's dismissal on 30 September 1999. It is a very old case. Justice requires that in the case management decisions made by the Employment Tribunal an early listing should be obtained. There is no doubt that alternative representation could have been made available. It is not suggested that the Applicant herself cannot attend. In my judgment the correct test is to ask whether the decision by the Chairman to list the case for 19 May is wrong in principle, since I am dealing with the exercise of discretion.[12]I can find no error in the Chairman's approach. There is no up to date information available about the two matters on which the Applicant relied, that is, the illness of her mother and her husband's court commitments.[13]However, entirely secondary to my reasoning above is the following. I am a judge in Crown Courts in Central London. I caused an enquiry to be made and have been told by the Old Bailey that the case for which Mr Preedy was due to attend as a defence witness resulted in the sentencing on 23 April of both the defendants on their pleas. Mr Preedy is not required therefore to attend as a witness. Contrary to Mr Preedy's assurance that he would notify the Employment Tribunal of any changes in his requirement to attend, this information was not drawn to the Chairman's attention, nor to mine, but it does strengthen the view I took that the Applicant's position is misconceived.[14]The decision of the Chairman shows no error of law in his exercise of discretion and the appeal is dismissed.