MELSTAR LTD v MRS ALISON RIX [2004] UKEAT 0701_04_0912

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0701_04_0912Case No Appeal No. EAT/0701/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MELSTAR LTDAPPELLANTMRS ALISON RIXRESPONDENT
Before
His Honour Judge McMullenDate 9 December 2004
[1]APPEARANCES For the Appellant No Appearance or Representation By or on Behalf of the Appellant For the Respondent No Appearance or Representation By or on Behalf of the Respondent SUMMARY Practice and Procedure Notice of Appeal struck out for failure to comply with Directions and the PD. HIS HONOUR JUDGE McMULLEN QC This case has been in front of me this morning because the Appellant, Melstar has failed to follow the directions given in this case, and the directions given in the Practice Direction.[2]The Appellant was required to comply with orders for filing of bundles and so on by 18 November 2004, and in default the note attached to that notice indicated that the Appellant may be required to attend before a Judge to explain non-compliance with the Practice Direction. Attention was given to paragraph 26 of the EAT Rules indicating that, for a failure to comply with an appropriate step, the EAT may decide to debar the party from taking part in the proceedings or make any order it sees fit.[3]The brief history relevant to this matter, is that on the 4 November 2004 concern was expressed by those representing the Respondent Mrs Rix who was the beneficiary of an award for sex discrimination in the sum of £28,000, indicating difficulties, which appeared to be in way of the Appellant. The Appellant was indicating that it was impecunious. Mrs Rix was having difficulty enforcing the award and had concerns about the solvency of the Appellant. At the time the Appellant was represented by solicitors and Counsel.[4]However, things moved on and complaints were made in respect of the preparation for this case. The upshot is that on 7 December 2004 an application was made by the Appellant, indicating that it had stopped trading. The sole Director was Mr Gale who was leading light giving evidence before the Employment Tribunal. He indicated that he did not have the capacity or experience to provide information or bundles required for the case and said follows:
"I therefore resign my position as director of the company and advise the remaining directors to put the company into immediate administration. Consequently, the only way the company can represent or resist the claim of Ms Rix or proceed with the appeal as by way of finding the monetary resource to assist legal representation. The tribunal has requested to hold the proceedings in abeyance for a reasonable time so that it can be organised or else it would be unfair determination. The remaining directors are all Indian based and they are being informed to take charge of the matters and respond directly to the tribunal."
[5]In my judgment, those grounds do not constitute sufficient grounds for failing to comply with either bespoke orders in this case or the Practice Direction. Both of those have been breached in this case. Nor is the impending administration of the Appellant a sufficient reason for delaying the hearing of this case without any forward date. If, as indicated, the business is to go into administration, Mr Gale has resigned, and the other Directors are in India, I see no prospect of this appeal being moved forward. In my judgment, the appropriate step is for me to strike it out for failure to comply with the orders of the EAT pursuant to Rule 26, and I do so. A copy of this will be sent to the parties.