OVENMILL LIMITED v MRS D CUTTING [2004] UKEAT 0837_04_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0837_04_1811Case No Appeal No. UKEAT/0837/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
OVENMILL LIMITEDAPPELLANTMRS D CUTTINGRESPONDENT
Before
His Honour Judge D SerotaDate 18 November 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 CL of ET should have granted adjournment of part heard case where Respondent's Counsel diagnosed with serious cancer and Respondent unable at last minute to find another advocate able to conclude the case. HIS HONOUR JUDGE D SEROTA QC This is a decision of a refusal by Ms V Wallis the Chairman of an Employment Tribunal at Ashford to adjourn these proceedings in most unhappy circumstances. These proceedings were commenced by the Applicant on the 22 July of this year and she claims unfair dismissal against the Respondent having been dismissed in June 2004. The circumstances of the claim are not relevant but it is resisted by the Respondent. I am given to understand that the case is part heard and is due to be heard today.[2]The basis for the application for the adjournment is as follows. The Respondent is represented by the firm of Baily Bryant & Dumbleton of Staplehurst who in turn instructed Ms Martha Knowlden of Counsel. Ms Knowlden had been involved in the case since its inception. Ms Knowlden is regrettably seriously ill with cancer. Her clerk at Kent Chambers in Maidstone was only aware of the severity of her position at approximately 3:50pm in the afternoon on the 11 November. He then had the extremely difficult task of trying to clear her diary and reclaim various papers which she had at her home.[3]He was briefly informed of her illness by text message but needed further details and sought further information from her which was received at lunchtime on 15 November. It was explained that Ms Knowlden was still in hospital and indeed due to have an operation on 16 November. The clerk Mr Matt Jones sought to clear her diary and contact all the solicitors who had instructed her and to inform in particular, Messrs Baily Bryant & Dumbleton that Ms Knowlden would be unavailable to attend the hearing today. He informed the solicitors on 15 November of the position but he had no one available to cover her or who would was properly qualified to deal with the hearing on the 18 th .[4]They were able to find other Counsel but not Counsel available for the 18 th . Contact was made by telephone with the Employment Tribunal and by e-mail requesting an adjournment and requesting if possible a transcript of the last hearing, at which the Applicant and or claimant and a number of her witnesses had been examined and crossed-examined.[5]The matter was put before a Chairman and Ms Wallis refused the adjournment in a letter dated 16 November. "The Chairman was sorry to hear about Counsel's medical condition, and hopes that there is better news soon. However, it is not clear how long the Respondent's Solicitors have known of the problem that this presents, nor it is clear why a new representative needs 28 days to prepare. The Chairman acknowledges the very unfortunate circumstances but considers, on balance, that the Hearing must go ahead. The Respondent's Solicitors have requested a transcript; they should be aware that none is made of the Tribunal proceedings."[6]On the 17 th a further letter was sent to the Employment Tribunal by Mr Matt Jones, again seeking an adjournment. The letter concludes:
"I respectfully ask that in the interests of the client, costs and importantly justice that the above case be adjourned to be re-fixed at a date convenient to all parties. This will enable me to be in receipt of all the facts of my counsel, and report back to those instructing and the Tribunal."
Despite that as I understand the matter the Chairman refused to agree an adjournment and the Respondent lodged a Notice of Appeal which I directed should be heard this morning and gave the parties the opportunity to deal with the matter if they wished on written submissions. I have received a submission in writing from the claimant and a letter from Mr Matt Jones from which I have derived the information I have referred to.[7]It is as it seems to me important to have regard to the overriding objective and the need to ensure that cases are dealt with justly. I do not consider that this case can properly be dealt with justly when the Respondent, through no fault of its own finds, itself deprived of its advocate in part heard proceedings at the last minute. It is bad enough to be deprived of your advocate, it is even worse to be deprived of your advocate when the case is part heard because of the obvious difficulty in getting another advocate familiar not only with the facts of the case but more significantly with what took place on the first occasion when the Tribunal considered the matter.[8]It seems to me, and I have consulted the President in this regard, that the interests of justice plainly required an adjournment to be granted. Of course the adjournment need not necessarily be for a long period of time but it should be of sufficient duration to enable the Respondents to instruct a fresh advocate for him or her to familiarise himself or herself with the relevant facts. I have accordingly taken the unusual step of dealing with this matter at such speed and allowing the appeal.[9]I recognise that Counsel's clerk may have been aware of Ms Knowlden's position since the 11 November but I am quite satisfied on the material I have seen that he acted promptly and properly in what he did and notified solicitors as soon as he was reasonably sure of the position.[10]In the circumstances, therefore, I have allowed this appeal and direct that the matter be adjourned today for a further date to be set by the Employment Tribunal. I am giving this judgment in open court but the parties and the Employment Tribunal I hope have already have been notified of that decision.