MISS M BURNS v (1) CONSIGNIA PLC (2) MR K HUMPHREY [2003] UKEAT 0873_02_0204

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0873_02_0204

Case No Appeal No. EAT/0873/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS M BURNSAPPELLANT

(1) CONSIGNIA PLC (2) MR K HUMPHREYRESPONDENTS

Before

Mr Justice Burton

Date 2 April 2003

[1]APPEARANCES For the Appellant MR J HORAN (of Counsel) Instructed by: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW For the Respondents MISS S PALMER (of Counsel) Instructed by: Consignia PLC Legal Services Impact House 2 Edridge Road Croydon Surrey CR9 1PJ THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by Mrs Maureen Burns against the Decision of the Employment Tribunal sitting at Watford on 14, 15 and 16 May 2002, handed down on 28 June 2002, that the Appellant's complaints in a second Originating Application dated 27 April 2001 were struck out and the Appellant was ordered to pay the whole of the Respondents' costs of the proceedings as assessed by way of a detailed assessment, if not otherwise agreed.

[2]The circumstances of there being a second Originating Application can be shortly summarised as follows. The Appellant, was employed by the First Respondent, then called Consignia PLC and now, by virtue of an amendment for which permission has been granted today, Royal Mail Group PLC, from 9 November 1990. She alleged in her first Originating Application which was issued on 2 November 2000, that there had been sex and race discrimination against her, and she gave particulars of that discrimination, starting with events in November 1999, and leading up to a complaint letter to her employers on 4 April 2000.

[3]The complaint against the First Respondent, the Second Respondent being the individual who was alleged to have harassed her, was that as the Second Respondent's employer, it had failed to deal adequately with her allegation of harassment and bullying. In paragraph 8 of her first Originating Application she stated that the First Respondent has a policy for dealing with harassment and bullying which lays down procedures and timescales for action and that the First Respondent had completely failed to comply with that procedure in her case. The allegations, as we have indicated, were of race and sex discrimination. It was common ground, when the matter came before the Tribunal, or at any rate it was found by the Employment Tribunal, that on the facts of the case as alleged in her first Originating Application, it was open to her to have alleged victimisation in addition to discrimination.

[4]On 29 January 2001, the Appellant resigned from her employment. On 20 March 2001 a letter was received by the Employment Tribunal from the solicitors acting for the Appellant, withdrawing the Originating Application, and on the next day the Originating Application was dismissed on withdrawal.

[5]On 27 April 2001 the second Originating Application was issued by the Appellant, once again, against the same two Respondents. This Originating Application no longer alleged discrimination on grounds of race but simply on grounds of sex. It included a claim of victimisation and it also included a claim for constructive dismissal, as it was put, effectively being unfair dismissal based upon an allegation that she had been constructively dismissed.

[6]The facts in the second Originating Application were identical to the facts particularised as the basis of the first application, save for the obviously necessary addition in order to justify the claim for unfair dismissal, namely in paragraph 5(vi) of the second Originating Application, that as a result of the First Respondent's failure to deal with the Applicant's complaints the Applicant resigned on 29 January 2001.

[7]The Respondents made an application to strike out the second Originating Application in this sense: that at what was otherwise to be the hearing by the Tribunal of the second Originating Application, leave was granted to the Respondents to amend the Notice of Appearance to allege matters, as it was described by the Tribunal in paragraph 1 of its Decision, of res judicata and/or issue estoppel. The Tribunal recorded in paragraph 2 that there had been application for a hearing of a preliminary issue as to whether the Tribunal had jurisdiction to consider the case, and so the Tribunal had to consider and did, at the outset of the hearing, whether to address its mind first to the issue of jurisdiction, and it concluded that it would.

[8]The basis of the case that was put forward, to resist the Respondents' effective application to strike out, was a denial by the Appellant that she had withdrawn, in the substantive sense, her application, and a resiling from her having given instructions to Mr Anderson. She and her mother gave oral evidence as to the circumstances of the withdrawal. This was intended, within the principles of the authorities which were fully considered by the Tribunal, including Ako -v- Rothschild Asset Management Ltd

[2002] IRLR 348

, to determine whether the effect of the dismissal of her first Originating Application did indeed amount to cause of action and issue estoppel, just as if there had been a determination on the merits of her allegations.

[9]In that context, the Tribunal concluded that it was important for Mr Anderson to attend, and at paragraph 3 of the Decision records as follows:

" During the Applicant's evidence she made statements not obviously relevant to the issues before us which, if established, would amount to serious professional misconduct and/or breach of duty by her former solicitor. The Applicant had not made any arrangement to call her former solicitor to give evidence or given him notice of her proposed evidence, accordingly on its own volition the Tribunal made a witness order for him to attend and to produce any files on the subject which he may still have."

And Mr Anderson was then called. His evidence was accepted by the Tribunal, and the evidence of the Appellant and her mother was rejected, and it is plain that the Tribunal concluded that the Appellant had deliberately misled, or sought to mislead, the Tribunal by giving false evidence.

[10]Paragraph 31 and 32 of the Decision records as follows:

"31 We consider that in making the claims that the Applicant has in her evidence, the Applicant was deliberately trying to mislead the Tribunal on facts which would be of relevance to it in the determination of whether it had jurisdiction or exercise its discretion to consider her complaints now before it of sex discrimination, because of the time point. In respect of the statements made which related to Mr Anderson, these were made without prior notice to him, which were of a very serious nature and could have a significant detrimental impact upon him, if true. We have found the allegations to be untrue. 32 We consider the conduct of the Applicant in these proceedings to be scandalous and unreasonable."

In relation to the precise occasion of the withdrawal of the first Originating Application the Tribunal found as follows:

"29 ….. we find that the Applicant did not seek advice from a solicitor until 30 August 2000 in respect of her complaints, did not write her own resignation letter, did attend a meeting with Mr Anderson on 15 February 2001 but did not do so in the presence of her mother, was advised at that meeting of the difficulties she faced with her case and on 20 March 2001 did instruct Mr Anderson to withdraw her complaint before the Tribunal. 30. The evidence of Mr Anderson was that in discussion with the Applicant, the withdrawal was to be complete withdrawal of her discrimination cases. In his words "we were walking away"

. The possibility of an unfair dismissal complaint however remained. We find that this was an abandonment of those claims and was not a discontinuance."

[11]The Tribunal correctly addressed itself as to the law and concluded there was full cause of action estoppel in relation to the bringing of any claim for sex discrimination in the second application, it having been the subject matter of the first Originating Application and having been abandoned in those circumstances. As was clear, there were no additional facts relied upon in support of that case, and although Mr Horan has included in his Skeleton Argument and/or Notice of Appeal, some submission that the proper approach was not adopted by the Employment Tribunal, he did not pursue that before us orally and we conclude that they exercised entirely the proper approach and reached the only available conclusion.

[12]The Tribunal also reached the same decision by reference to the correct authorities, including Henderson -v- Henderson [1843] 3 Hare 100 and Air Canada -v- (1) Alfa Catering Services -v- Basra

[2000] IRLR 683

in relation to the case of victimisation. The claim for victimisation was one which plainly could have been brought forward, within the principles of Henderson -v- Henderson in the original application; the facts supporting it were the same. Once again, no new facts had arisen after the date of the Tribunal.

[13]The suggestion at one stage was made of the fact that the resignation alleged to be a constructive dismissal could be seen itself as an act of victimisation, but that plainly is unarguable and was not supported today by Mr Horan, because, of course, it did not amount to a fresh act of discrimination, it was, if anything, a consequence of the discrimination or victimisation; so we are entirely satisfied that the Decision of the Tribunal was correct that there was abuse of the process and/or issue estoppel in relation to the victimisation claim, on the basis, well established in the authorities, that it behoves a party to bring forward the whole of its case, and that the Court will not, except under special circumstances, permit the same parties to bring the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not put forward. Paragraphs 36 and 37 of the Tribunal's Decision summarise this succinctly.

[14]So far as concerned the other cause of action raised in the second Originating Application, namely constructive dismissal, it was plain and accepted by the Tribunal that there was one new fact which had appeared since the first Originating Application, namely the resignation of the Appellant, and there was plainly a distinction made, and rightly made, by the Employment Tribunal in its Decision, between the sex discrimination and victimisation claims and the constructive dismissal claim. In paragraph 60 of its Decision it says:

"In respect of the Application …… presented to this Tribunal, [that is the second application] we consider that, with the exception of the constructive dismissal element, that complaint is the same as the complaint which was dismissed by the Tribunal on 22 March 2001."

In paragraph 64 the Tribunal record, correctly:

"Having regard to the Applicant's complaint of constructive dismissal, this could not have been brought until the Applicant resigned. This she did after the date of presentation of her first complaint and therefore could not have been the subject of that complaint."

[15]In those circumstances, Mr Horan says, the Tribunal should have stopped there. It had made the following findings in essence, and, indeed, only these findings were available:(1) that there was a new fact which had arisen subsequent to the first Originating Application and which was an important fact going to the creation of the alleged cause of action of constructive dismissal, namely the resignation;

(2) the cause of action for constructive dismissal could not have been brought forward in the 2 November Originating Application, because it had not yet accrued.

[16]That, says Mr Horan, should be that, in terms of any application of Henderson -v- Henderson or the concept of abuse of process; but the Tribunal did take the matter further and reach the contrary conclusion in paragraphs 65 and 66 of its Decision, which we now read:

"65 We considered whether it would be an abuse of process to allow any of the complaints still subsisting to continue. We reminded ourselves that the principle of finality in litigation applied and that we had made findings that the cause of action estoppel applied in respect of the majority of the sex discrimination complaint. If the complaints were to be pursued, and even if matters were to be referred to as having probative value, they would in effect have to be re-litigated. Having regard to the Department of Education and Science -v- Taylor we reminded ourselves that where a party alleges abuse of process, it is for that party to establish the prejudice to them, that the categories of conduct which can constitute an abuse of process are not closed, and the circumstances of each case must be considered, bearing in mind public policy and the interests of justice……. The special circumstance which had been put forward by the Respondent to the Tribunal was that the First Respondent would have to re-litigate the complaints, that the complaints were serious and the nature of those complaints affected the Respondents. This was not to diminish the importance of the complaints to the Applicant and the prejudice that would be caused to her if the complaints could not proceed. 66 We considered the respective prejudice to the parties and the submissions of all the parties. With the exception of the Applicant's resignation on 29 January 2001 and the continuation of the situation which existed prior to 2 November 2000 to that date, the whole of the Applicant's complaints are based on the same facts. These new facts relate back and are part of one chain of events. While read literally, the legislation on which the complaints are based gives the Applicant the right to present complaints in respect of matters past 2 November 2000. The effect of these complaints continuing however would be to litigate matters that should not be. While the Applicant is entitled to have her complaints heard, the Respondent is also entitled to rely on the cause of action estoppel and the principle in Henderson -v- Henderson . We considered that this was a case where, the circumstances are [such] that it would be an abuse of the process to allow the complaints to continue as that would, in effect, cause a hearing in respect of matters which ought not to be heard by this Tribunal. To allow the complaints to be heard would be a misuse of the legislation. For those reasons we would not hear the Applicant's complaints"

[17]It is plain that the basis, on which the Tribunal approached the consideration that there were special circumstances such as to extend the concept of abuse of process, was that a Tribunal was going to have to hear the same facts as it would have heard in order to establish the sex discrimination and victimisation case, and in consequence, what was said to be the abuse, used in very broad language, was that the effect would be to litigate matters that should not be.

[18]That is a very broad proposition; it may be that on particular facts of a given case, even if the cause of action is different and the cause of action is one which could not have been brought forward in the original proceedings, it may be appropriate to prevent a litigant from bringing evidence forward, even for a different purpose from that for which it was previously brought forward in early proceedings, or at any rate could have been brought forward, had the proceeding not been abandoned. There appear to us, on the findings of the Employment Tribunal, however, to be no such circumstances based upon the facts of this case put forward. We are unpersuaded that there is any general proposition.

[19]There are many examples of situations, some of which were canvassed in argument, in which it will be, inevitably, the case that facts are re-canvassed for a different purpose; for example if, as was discussed, there had been a series of breaches of contract, for example in relation to the supply of goods, proceedings are brought in respect of those several breaches, with claims for damages arising out of them, which are then abandoned or possibly litigated, and there is then a further claim based upon a repudiation of the umbrella contract under which those goods were supplied, with a claim for loss of profit resulting upon that repudiation. It appears to us in principle that there is no reason why the same facts, which would have been led to establish individual breaches, should not then be led in order to establish the repudiatory breach of a different contract, namely the overall supply contract, or agency contract, or distribution contract.

[20]So, here, if the facts had been examined for the purpose of sex discrimination, then the elements that would have been required to have been considered would have been those falling within the Act to establish an act of sex discrimination and, of course, so far as the employer is concerned, questions such as whether it took all reasonable steps would have been required to be considered. In a constructive dismissal claim, of course, no conclusion as to whether the acts are sex discriminatory would be necessary. What would be necessary to consider would be whether the acts occurred at all, and if either the combination of the acts or the nature of the investigation, or lack of it, amounted to a breach, and it would have to be fundamental breach, e.g. of the relationship of trust and confidence between the employer and the employee, arose. That would require consideration of the same facts, but for a different purpose.

[21]Now, one can see, as we have already indicated, circumstances in which a Court might say that those facts should not be re-litigated or litigated, once earlier proceedings have been abandoned. One such possibility might be if, on an analysis of the true situation, subjectively, the possibility of fresh proceedings was as much abandoned as the old proceedings themselves were; but, in the light of the evidence of Mr Anderson which was recorded in paragraph 30, which we have already read, it is clear that at any rate Mr Anderson was of the view that the possibility of an unfair dismissal complaint remained, and if he was of such view, then, no doubt, so was the Appellant.

[22]We entirely accept that the subjective views of the parties would be irrelevant in order to arrive at the question as to whether there was abandonment. However, they must be relevant, if one is considering, as the Respondents invite us to do, an extension of the concept of abuse of process. Of course the Courts set their face against re-litigation, and are in favour of finality of proceedings. It is also the case that the merits of the constructive dismissal will inevitably be impacted by the fact that it seems that no new matters arise, after the date of 2 November 2000, and therefore it may be difficult for the Appellant to establish the necessary ingredients of constructive dismissal, which include the fact that the resignation was as a result of the alleged fundamental breach and that the alleged breach, or fundamental breach, was not waived.

[23]Nevertheless, it is our judgment that it was, whatever the eventual merits of the case, not open to the Tribunal to have concluded that it was an abuse of the process to pursue a constructive dismissal claim. It is right to note that the Appellant did not simply bring forward a constructive claim on its own, which would at least have had a more respectable setting, than trying to resuscitate all the other claims which, as we have indicated, the Tribunal, entirely rightly, rejected, but, on analysis, what the Tribunal did here was to conclude that the Appellant ought to have brought forward a case which she could not have brought forward on 2 November, because she had not yet resigned, or, perhaps implicitly, that she should have resigned in order to be in a position to bring her constructive dismissal claim. One or other of those analyses are necessary, in our judgment, before it can truly be said that it was an abuse of process for her to launch in April, within the three months time limit from her resignation, a claim which she could not have included within the 2 November proceedings and which had not been abandoned because it had not been commenced.

[24]In those circumstances we would have allowed the appeal in this case, but only in respect of the constructive dismissal claim, and would have dismissed it in respect of the sex discrimination and victimisation claims which would include, of course, the entire removal of the Second Respondent from these proceedings; but the Tribunal itself raised a hurdle in the way of the Appellant.

[25]Last Thursday, we caused a fax to be sent to Counsel for both parties drawing attention to paragraph 68 of the Decision which reads as follows:

"A strike-out is a very serious order to make, nevertheless, the allegations we found to have been made by the Applicant were serious and were, in our findings, an attempt to mislead the Tribunal and could affect the livelihood and reputation of another person. Further, we do not consider the Applicant to be a credible witness and because of our findings would have difficulty in accepting any evidence of hers corroborated only by her mother. In acting as she did, we consider that the Applicant acted in a scandalous and unreasonable manner and if we had not already decided to do so, we would have Struck-Out the whole of the Applicant's Originating Application."

That appeared to us, having read the papers provisionally, to amount to a bar in the way of the Appellant because, even if, as, in fact, she has now done, she succeeded on her main ground, the Tribunal would have found against her on the alternative basis that her conduct, being scandalous as it has found, was such that the case should be struck out on that ground also, and in any event.

[26]If that be right, then the question on the main issue with which we have been dealing would be academic because even if successful from that point, the case would remain struck out on the alternative basis and, putting it at its lowest, if that alternative decision were unaltered, there would be no point in re-litigating a question of constructive dismissal, because the Tribunal would be bound to strike out the case, in any event, whether on a remission to it or otherwise.

[27]There was no appeal against paragraph 68 and the decision contained in it and the fax from this Tribunal to the parties, specifically addressed to Counsel for the Appellant, asked the question whether there was any materiality or point in the appeal, given the decision of the Tribunal in paragraph 68. Although a fax to both sides was sent out, and the Employment Appeal Tribunal has a record of its being sent to both Counsel's chambers, the fax arrived with the Respondent's Counsel, but Mr Horan did not know of its existence. When he attended today, now some four or five days since it was sent, he learnt of the existence of the fax only for the first time.

[28]It is a particular matter of concern that this kind of course should be taken, which is intended to give the parties advance notice of matters that trouble the Tribunal, and should be incompetently dealt with as this appears to have been, of course, not personally by Mr Horan, but by someone for whom he is responsible; but the fact is that he was faced this morning with this question and although we gave some time to him for consideration, he was unable to do other than accept that unless there were an appeal against it, paragraph 68 would indeed render his appeal academic.

[29]His answer was to seek leave to amend his Notice of Appeal. The history of the Notice of Appeal must be considered. In the original Notice of Appeal, which was lodged in time on 7 August 2002, the ground of appeal was very exiguous; it read as follows:

"The Tribunal erred in law in striking out the Appellant's case and, in particular the Appellant's claim of Constructive Dismissal"

Then there was an assertion of failure to apply legal principles and/or perversity in reaching conclusions of fact relating to the withdrawal of the Employment Tribunal proceedings, and an appeal against the Order for costs.

[30]The matter came on, in the way that most proceedings before the new Practice Directions used to come on, for a preliminary hearing at this Tribunal and, in those circumstances, it was ex-parte, with no appearance nor opportunity given for submissions by the Respondent, before a panel chaired by Judge Pugsley and members. Judge Pugsley, in letting the appeal through to a full hearing, delivered no reasoned judgment on the preliminary hearing but, as was then often the practice, made an Order which reads as follows:

"THE TRIBUNAL FURTHER ORDERS that the Appellant do lodge an amended Grounds of Appeal within 7 days of the date of this Order"

It is apparent that the amended grounds of appeal, which were then filed, reflected the decision of the Employment Appeal Tribunal that (a) the Notice of Appeal as it stood was inadequately particularised, and (b) the ground alleging perversity etc could not be proceeded with, and so a very specific amended Notice of Appeal was to be and was then put in by Mr Horan on the Appellant's behalf.

[31]In paragraphs 4 and 5 of the Amended Notice Mr Horan's fire was aimed solely at the Decision of the Tribunal on cause of issue estoppel and abuse of process, and the allegedly wrong tests applied, and then the last two paragraphs dealt only with the appeal on costs. The matter, therefore, when it came before us today was only dealing with the issue estoppel etc points, with which we have now dealt, and costs, and he had no answer other than his application for leave further to amend to the fact that his appeal would be academic.

[32]Before we turn to the question of his application for leave to amend, we should deal with the appeal against the Order for costs. The way in which this was framed in paragraph 6 of the Notice of Appeal was this. If the first or second grounds are accepted, and those are the grounds related to cause of action, issue estoppel and abuse of process, on their face applying to all the allegations, namely sex discrimination, victimisation and constructive dismissal, the Tribunal erred in law by ordering costs; the costs Order could not stand because the Respondent would have been there in any event.

[33]In his submissions before us, Mr Horan took us to the conclusions of the Tribunal in relation to costs and, in essence, to paragraph 72 where, after setting out its findings, the Tribunal concluded:

"……. we find this is a case where the Applicant's conduct is such that she should be ordered to pay the Respondent's costs"

Mr Horan was in the difficulty that by the time he was dealing with costs, it was apparent that this Tribunal was not going to find for him on anything other than the constructive dismissal point and that, indeed, is what ensued. The difficulty with which he thus had to grapple was how any different result would have ensured if the Employment Tribunal had come to the same conclusion as it did in respect of the bulk of matters, disbelieving the Appellant and her mother, in relation to her factual case, which they concluded to be false in relation to the withdrawal of the first set of proceedings, and dismissing the sex discrimination and victimisation claims, but had simply allowed through, subject always to their other findings, the case only on the basis of constructive dismissal.

[34]It is apparent to us, and in essence Mr Horan had little that he could say in response, that the basis of the finding in relation to costs did not relate to the actual outcome, that the case was struck out or dismissed, and thus, in the hypothetical situation, had yet been allowed to continue in one small respect, but rather to the manner of conducting the proceedings in a deliberate attempt to mislead the Tribunal. It appears to us that the impact of success, to a limited extent in relation to constructive dismissal, makes no difference to the overall conclusion of the Tribunal with which we are unable to differ, and, indeed, Mr Horan did not orally, at any rate, invite us to differ, that the conduct of his client and her mother, on the findings of the Tribunal, were such as to justify the conclusions reached by the Tribunal, and we consequently do not interfere with the Tribunal's discretion as to costs.

[35]We turn then to his application for leave to amend to cope with the hurdle of paragraph 68, which would otherwise make his (limited) success in this appeal academic. The re-amended Notice of Appeal, for which we are invited to give leave, he having drafted the matter hurriedly over the lunch adjournment, and the document having been slightly tidied up in the course of argument, reads as follows:

"5A The Tribunal erred in law in that, in striking out as it did in the alternative under paragraph 68 of its decision (i.e relying on the scandalous and unreasonable manner in which the appellant had, in its judgment, conducted the proceedings) it a) did not consider the effect on the subsequent trial and whether it was possible to have a fair trial or not; b) in the alternative, did not give as part of its reasons i) a consideration of whether or not it was possible or not to have a fair trial, ii) a consideration of whether or not, if it was possible to have a fair trial, this meant that to strike out the proceedings was a proportionate order to make. For the avoidance of doubt, the appellant will rely on De Keyser -v- Wilson [2001] IRLR 324 ."

[36]This is a reliance on De Keyser substantively, alternatively an appeal on the basis of inadequate reasons, falling within Meek -v- City of Birmingham City Council

[1987] IRLR 250

. The case of De Keyser is one in which the Tribunal had struck out the employer's Notice of Appearance, on the ground that the manner in which the employer had conducted the litigation had been scandalous. The Court of Appeal considered that the Employment Appeal Tribunal had failed to address its mind to an important and indeed crucial factor, as to whether a fair trial was still possible.

[37]In paragraph 24 of the judgment of the decision of Lindsay P, he considered Logicrose -v- Southend United Football Club (The Times 5 March 1998) and Arrow Nominees Inc -v- Blackledge

[2002] BCLC 167

CA , including the quotation from

Lord Justice Chadwick's decision in Arrow Nominees which read in part as follows:

"The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke"

At paragraph 25 Lindsay P says as follows:

"We must keep in mind, too, that the case at hand is a case not involving disobedience to or failure to perform an order of Court; wilful, deliberate or contumelious disobedience was not in issue. Part of those passages from Arrow Nominees and in particular the passage from Logicrose show the great importance, in relation to a discretion to strike out the whole of a case where there has been no such disobedience, of an inquiry into whether a fair trial is or is not still possible. Unfortunately, there is no sign whatever of that having been considered by the employment tribunal in the case before us. Whilst no one would suggest that it is incumbent upon a tribunal necessarily to set out every consideration which, in the exercise of its discretion, affects it mind one way or another, to leave out so crucial a factor as to the question of whether a fair trial is still possible either indicates that the matter was not within the contemplation of the tribunal (thereby committing the error of law of leaving out of account something which so obviously should have been taken into account) or, if the matter had truly been in the tribunal's mind but is omitted from express mention, leaves the tribunal open to argument that it has failed the Meek v City of Birmingham test."

[38]This is, of course, a rather unusual situation in which the Tribunal had, at great length and with considerable clarity, reached its conclusion that the case should be struck out anyway on the grounds of abuse of process etc, with which we have already dealt. Paragraph 68, in those circumstances, which was its alternative decision, as to what it would otherwise have done, is, understandably, brief and neither side has criticised the Tribunal in that regard. But paragraph 68 has now achieved a central significance, in the light of the otherwise success of the Appellant, in the limited respect to which we have referred, on this appeal, which would thus allow the prosecution of an unfair constructive dismissal claim, but for the terms of paragraph 68.

[39]It is apparent from De Keyser , and the authorities there referred to, that it is not necessary in every case that before a strike-out a conclusion be reached that there cannot or can no longer be a fair trial, certainly not so in a case of deliberate or contumelious disobedience of a Court Order. It appears to us that there can be a situation in which there can be a strike-out for scandalous conduct, even where a fair trial is still possible. But is equally apparent from De Keyser that the factor whether there can still be a fair trial requires consideration by an Employment Tribunal, and, on the face of it, this Tribunal did not address that question, and Miss Palmer, who has today appeared for the Respondents and argued the matter ably on their behalf, has been unable to say that paragraph 68 of itself as it stands would comply with the principles of Meek .

[40]It may be that there is an implicit suggestion that there could no longer be a fair trial, because of the passage, which we have read, in which the Tribunal says that because of their findings they would have difficulty in accepting any evidence of hers corroborated only by her mother. That may be a suggestion that, by virtue of the total lack of credibility of the Appellant, there could no longer be a fair trial, but that alone may not be an answer to the question as to whether there can be a fair trial, as was canvassed in argument. That may well mean that the Appellant would have great difficulty in winning a trial, and thus give considerable comfort to the Respondents, over and above the fact that it would appear that the claim for constructive unfair dismissal would be likely to be difficult to establish in any event, but it would not necessarily amount to a finding by the Tribunal, of itself, that there could no longer be a fair trial, although it may be that that is what it had in mind.

[41]On the face of it, the Tribunal has not indicated that there has been express consideration of the point. Even if the Tribunal in the end were to conclude that the scandalous conduct was such that, even though a fair trial was still possible, this should be one of those cases in which it was proportionate to make an Order to strike-out, it would at least, in the light of the words of Lindsay P which we have referred to, require that there should at least have been, before that conclusion was reached, an enquiry into whether a trial is or is not still possible.

[42]It may be, as we have indicated, that by drawing together the conclusions that the Tribunal had reached as to the Appellant's conduct in paragraphs 29 - 32, the conclusions it reached in relation to costs in paragraph 70, and what it states in paragraph 68, a proper and reasoned conclusion that the case should be struck out, falling within the authorities referred to by and in De Keyser -v- Wilson and De Keyser itself, might be arrived at by a Tribunal. But it appears to us, that, without more, it cannot be seen that the Tribunal has reached such a decision, and, indeed, as we have already indicated, it may well be that it did not think it had to articulate, or articulate fully, its Reasons, where it was in fact already striking-out the proceedings on another ground.

[43]We are satisfied that Mr Horan needs to amend his ground of appeal, even though on this analysis the Tribunal's Decision did not rest itself on paragraph 68, because he has got, to put it in colloquial terms, to get rid of paragraph 68 in order to succeed on his appeal; but for that very reason, his case has the more force that paragraph 68 itself, standing alone, as it now has to, in order to be a total answer to the appeal, is not sufficiently articulated.

[44]If he were allowed, therefore, to amend out of time, we would at least consider that it was proper to allow this appeal on the Meek basis, and it might be that the Tribunal did not consider the matter at all on a correct basis, in which case he might succeed on the substantive point also.

[45]But is he to be permitted to amend out of time and so substantially out of time as this is, compared with the forty two day time limit for the bringing of a Notice of Appeal initially, the need for compliance with which was so emphatically affirmed to be significant by United Arab Emirates -v- Abdelghafar

[1995] ICR 65

and in the Court of Appeal in Aziz -v- Trinity Street Taxis Ltd

[1988] ICR 534

. Those cases emphasise that it is only in exceptional cases, where the delay is fully explained, that even a day's extension of time over and above the generous forty two day period will be allowed.

[46]It appears to us that this case is not exactly on all fours with Abdelghafar and Aziz . Those cases are important, because the Employment Appeal Tribunal does not even have jurisdiction unless an appeal is brought within forty two days; in this case an appeal was brought and it is a question of its content. It appears to us that although a strict approach must be adopted to amendments, particularly late amendments, informed by the principles of Abdelghafar and Aziz , there is, nevertheless, a discretion to allow an amendment in appropriate cases.

[47]Mr Horan has emphasised that even in the Employment Tribunal, where a three months time limit is, on the face of it required, cases are allowed in appropriate circumstances to be brought out of time and that this might be the approach of the Employment Appeal Tribunal, which although primarily informed by Aziz , ought to bear that kind of discretionary approach in mind on an application such as this. It is also clear that where jurisdiction does not arise in the sense to which we have referred, for example in cases where respondents are out of time for putting in their answers, although the time limits are still strictly applied, the discretion to extend time will be more likely to be exercised.

[48]This is, of course, a rather unusual case. The first thing that is unusual is that, on the face of the original Notice of Appeal, this argument, albeit that the Notice was wholly unparticularised, would probably have been arguably within it. It was only after the amendment that it is plain that this argument was without it, and would require further amendment to bring it back in - we say 'bring it back' but, of course, it was never in the mind of the pleader originally, it was simply that the broad brush nature of the original appeal would have been wide enough to allow its argument.

[49]Secondly, this was not raised at the preliminary hearing, when the amendment to the Notice of Appeal was granted, and when the parameters for this appeal was, as is always the case where there is a preliminary hearing, set, and the fact that there has been a preliminary hearing is another reason why there is a reluctance on the part of this Tribunal to allow amendments at the full hearing.

[50]Thirdly, there is no explanation put forward by Mr Horan, other than the inference that it did not occur to him that it would be necessary to cope with paragraph 68, his mind being concentrated on the issues which seemed to be primarily arguable, and success on which would, he thought, achieve his client's aim and the grant of the appeal, and the Employment Appeal Tribunal, albeit at an ex parte preliminary hearing, raised no such problems; though he rightly accepted that he could hardly ascribe blame to the Employment Appeal Tribunal on a preliminary hearing, and no doubt dealing on that day with a number of other similar hearings, and responsibility is not to be ascribed to the EAT on an ex parte application for doing anything other than assessing the strength of the arguments that are put before it, particularly in the absence of any written submissions from the Respondent.

[51]All those matters, coupled with the very late nature of this application which, by virtue of the fact that Mr Horan did not receive the fax on Thursday, was not even made on Thursday, but not until after the opening of this appeal, militate against any idea of discretion being exercised in favour of the Appellant.

[52]There falls to be added to this the obvious prejudice to the Respondent. If there is no appeal out of time here, then the Respondent will be successful on this appeal, because of the one otherwise arguable ground of appeal being academic; while if the leave to appeal is allowed out of time; the strength of the submissions, which I have already summarised, would lead to the likelihood that the appeal would be allowed and the Respondent be faced with the possibility of a further hearing. Of course, to be set against that is the inevitable prejudice to the Appellant.

[53]We are satisfied that this is a case in which there should be leave to appeal out of time, for the following reasons, after taking into account the matters which we have just canvassed. 1) This is not a point which at any time was picked up by the Respondent: neither in the otherwise well argued Respondent's Answer which Miss Palmer put in some time ago, nor in her preparation for this hearing. Had the matter not been raised by us, this appeal would have gone forward, been argued and would have succeeded. It can hardly be said, in those circumstances, to be prejudicial, or at any rate as prejudicial as it might otherwise have been said to be to the Respondent. Of course the same criticism for missing the point can be laid at the door of the Appellant's Counsel, indeed more so, but if the point were not taken and had not been taken, either by the Respondent or by the Tribunal, for the reasons given, the Appellant would have succeeded, and, on the face of it, it was not taken by the Respondent. 2) It was in immediate response to the bar, raised by paragraph 68, by Mr Horan, that this amendment was raised; albeit late, therefore, it was one to which he immediately responded and that very fact emphasises what he described as the unanswerable nature of the amendment. Miss Palmer has pointed to the fact that in many cases (and she refers to comments by Harvey in relation to extensions of time) the merits of an appeal will not necessarily be relevant; but it appears to us that that may be the case in the ordinary situation, not least where the merits cannot necessarily be forecast successfully at an early stage of an appeal, but here the appeal has otherwise succeeded, and this amendment is required in order to enable an otherwise successful appeal not to be stymied. So much for the merits of the underlying appeal. As for the merits of the argument itself, it appears to us that she accepted, at least in relation to the Meek -v- City of Birmingham point, the strength of the case contained in the proposed amendment. 3) We do not propose, in granting the amendment, necessarily to create a situation in which there will be a further hearing on constructive dismissal, which would specifically prejudice Miss Palmer's clients. We propose to take the course which was canvassed in argument, which will follow the Meek line rather than the substantive success of the argument, at least at this stage, and remit the matter under section 35 of the Employment Tribunals Act 1996 to the Employment Tribunal, to consider the judgment in De Keyser -v- Wilson and paragraph 68 of its Decision.

[54]If, on consideration of those matters, the Tribunal concludes that, now it appreciates that its main Decision is not fully supportable, and that the whole matter rests upon its conclusion in paragraph 68, and that in the light of reconsideration of this judgment and De Keyser and the facts before it, the Tribunal is not able to say, now that its Decision would rest on scandalous behaviour only, that it would strike out the claim, then, no doubt it will of its own motion review its Decision, or at any rate, paragraph 68 of that Decision, and make the necessary directions for the hearing of a constructive dismissal claim. If, on the other hand, having considered the matter, it concludes that it stands by its Decision, and is in a position to give, without hearing, of course, any further evidence, the reasons which justify its conclusion that the balance of the case should be struck out, then it can and will do so.

[55]The procedure we propose is as follows: 1) Both parties are to have the opportunity to make further submissions to the Employment Tribunal before it comes to its conclusion on the remission. Such submissions must be in writing; there is no question of a further oral hearing, but we would suggest submissions can be exchanged with the opportunity of comment by one party on the opposite party's submissions within seven days after exchange, and the Tribunal can then thus consider the matter on the basis of those submissions in addition. 2) If the Tribunal then delivers a decision giving reasons for its paragraph 68 conclusion, and upholding that conclusion, then the matter will be returned to this Tribunal, the appeal being adjourned for that purpose, and we will consider those reasons, in the first instance, on paper. If we conclude that there is a requirement for a further oral hearing of this appeal, and we very much hope there will not be, because the intention is to avoid unnecessary expense, then we will order one, but otherwise we will decide this appeal on paper, just as if we had concluded this hearing, but given both parties liberty to make supplementary submissions in writing, as often occurs: and we will give directions as to any further submissions.

[56]If we conclude, either on the basis of an application by one side or another or of our own motion, that it is appropriate and necessary for there to be an oral hearing and we indicate that that is not our present intention, but we do not rule it out, then we will hold an adjourned oral hearing of this appeal, with the benefit of the Reasons of the Employment Tribunal. All this must be done speedily, because clearly, if there is the likelihood of any further hearing on constructive dismissal, it must proceed as speedily as possible, although, of course, the timescale is to an extent inhibited first by the need to have a transcript of this judgment, and, secondly, by the need for there to be time for consideration by the Employment Tribunal.

[57]So far as the obligation on the parties is concerned, I conclude that that should be strictly imposed, and, consequently, subject to any further submissions that may be made, we shall suggest that any submissions to the Employment Tribunal should be made without waiting for this transcript and within fourteen days of the date of the sealed Order, with, as we have indicated, any further comments by other parties on the other submissions within seven days thereafter, and, similarly, that if the Employment Tribunal does not accept the point and review it of its own motion, but gives the reasons for standing by its Decision, then any request to this Tribunal that there should be an oral hearing, as opposed to simple consideration by this Appeal Tribunal on the papers, should be made to this Tribunal within seven days of receipt by the parties of the Reasons of the Tribunal.

[58]To that extent, this appeal is adjourned, although, as we have indicated, a substantial balance of it is dismissed.