MR R T LEWIS v TESCO STORES LTD [2004] UKEAT 0995_03_2402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0995_03_2402Case No Appeal No. UKEAT/0995/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R T LEWISAPPELLANTTESCO STORES LTDRESPONDENT
Before
Mr Justice BurtonDate 24 February 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 THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) The case of Lewis -v- Tesco Stores has been brought before the Court by virtue of the failure of the Appellant to comply with Orders in his appeal, which is presently intended to go forward, unless otherwise ordered today, for 27 February, that is Friday of this week.[2]A little should be said about the history of this matter, and of another appeal, which Mr Lewis brought against a Mrs Adlem, which was UKEAT/0335/03. In relation to the Adlem appeal, there was a decision of the Employment Tribunal, on 18 February 2003 and on 6 May 2003 an Order was made, on our sift, by His Honour Judge Prophet, for a full hearing. This was itself an appeal against a decision to strike out the Appellant's Originating Application by reason of his non-attendance.[3]The matter came before the Registrar because of failure by the parties in that appeal to provide four copies of the agreed bundle of documents for the hearing, which had been placed in the warned list for June and July 2003; and it was ordered that, unless the bundles were lodged with the Employment Appeal Tribunal by noon on Tuesday 15 July 2003, both the Appellant, Mr Lewis, and the Respondent, should appear before a Judge of the Employment Appeal Tribunal on Thursday 17 July at 10 am to explain non-compliance with the Practice Direction.[4]The matter came before me on 17 July 2003. The Respondent put information before the Court on that occasion which made it clear that the problem lay with the Appellant. A letter dated 17 June 2003 was put before the Court, from the Employment Tribunal at Birmingham, which indicated that the Birmingham Employment Tribunal had stayed some proceedings brought in that Tribunal, because the Tribunal was awaiting the result of proceedings in the Birmingham County Court where the Court was considering make an Order so that the Applicant could be regarded as a vexatious litigant; and this was passed on by the Respondent's solicitors in that case to the Employment Appeal Tribunal. Without, at that stage, taking any decision as to where the responsibility lay, I ordered that the appeal be stayed, by an Order dated 17 July 2003, until 17 September 2003, and both parties were required to report in writing to the Employment Appeal Tribunal, on notice to the other party, the decision in relation to the matter, by 4.30 pm on 19 September 2003.[5]In a letter dated 17 October 2003, the Respondent's solicitors wrote to the Employment Appeal Tribunal referring to their earlier correspondence, and indeed a Skeleton Argument, filed on 13 June stating as follows:
"We consider the Appellant in this case is a vexatious litigant whose conduct throughout has been unreasonable and an abuse of process. We consider his appeal, just like his original claim, to be wholly without merit. Our client has a modest income and it is believed that the Appellant's financial means are such as he would be unable to satisfy any award of costs which might be made in our client's favour at the conclusion of these proceedings ….. Since the Order made by The Honourable Mr Justice Burton made on 17 July, we can confirm that we have received no contact whatsoever from the Appellant, he has not approached us to discuss agreement of bundles and we are not aware that he has lodged the required bundle with Appeal Tribunal. Accordingly, we respectfully request that the appeal be dismissed and that an Order be made that the Appellant shall pay the Respondent's costs of and occasioned by these proceedings."
[6]A letter from the Birmingham Employment Tribunal dated 11 September 2003 was sent to the Employment Appeal Tribunal by the Respondent's solicitors, in which it was recorded that the Regional Secretary was directed by a Chairman to say that the stay, in applications there enumerated before the Birmingham Employment Tribunal, be extended until 7 November 2003, when the matter would be reviewed again, as the decision in the Birmingham County Court was presently unknown.[7]The matter came back, in those circumstances, before the Registrar, who made an Order on 4 December 2003 lifting the stay which I had imposed on 17 July, and ordering that the Appellant lodge with the Employment Appeal Tribunal, and serve on the Respondent, four copies of a bundle, a chronology, a skeleton argument and list of authorities by 4 pm on Monday 22 December 2003. If the Appellant did not comply with that Order the appeal would forthwith stand dismissed without further notice. The Appellant failed to comply with that Order and the appeal was dismissed on 12 January 2004. That is the story of the appeal in the Adlem case.[8]Meanwhile, Mr Lewis had brought four or five previous applications against this Respondent, Tesco Stores Ltd. The last but one of them was dismissed (in his absence) by the Employment Tribunal as out of time in July 2002, and an appeal to this Appeal Tribunal was rejected on 11 June 2003 and a further appeal dismissed by the Court of Appeal on 6 October 2003: on neither of these appeals did he attend. The last such previous application was dismissed by the Employment Tribunal in August 2002, and an appeal dismissed by this Appeal Tribunal as out of time on 10 November 2003: again he did not attend on the appeal. Mr Lewis has now brought a further claim against the present Respondent. The Employment Tribunal made an order in this case dated 24 October 2003, upon the Applicant not being present nor represented, that two of the earlier applications which he had brought against the Respondent, Tesco Stores Ltd, be struck out for want of prosecution, and the Appellant be ordered to pay the Respondent costs assessed in the sum of £1500.[9]The Appellant appealed the decision in the Tesco case, and on the sift an Order was made by His Honour Judge Peter Clark, sealed on 15 December 2003, giving directions for the purpose of a preliminary hearing, which, of course, does not involve a respondent, so far as preparation of papers or attendance is concerned. The Appellant failed to comply with that Order, and the Registrar made an Order on 11 February 2004 that, upon the failure of the Appellant to provide a bundle of documents for the preliminary hearing fixed for this Friday, in accordance with paragraph 6, and upon his failure to respond to correspondence from the Employment Appeal Tribunal, dated 30 December 2003, and 7 January 2004, the Appellant should appear before a judge of the Employment Appeal Tribunal at 10 am on Thursday 19 February to explain non-compliance with the Practice Direction.[10]Nothing further was done by the Appellant, and the matter was again considered by the Registrar, in an Order that was sealed on 20 February 2004, which recited:
"UPON the failure of the Appellant to provide a bundle of documents for the forthcoming hearing listed for Friday the 27 th of February 2004 ….. AND UPON the failure to respond to correspondence"
It was directed that unless the bundle was lodged with this Tribunal by 4 pm on Monday 23 February, the Appellant should appear today, Tuesday 24 February, to explain his non-compliance with the Practice Direction.[11]By a letter dated 16 February 2004 the Appellant wrote to the Tribunal that he intended to make a written application before a judge to set aside the Order of the Registrar dated 11 February, and asking that he be given an extension of time to send and lodge bundles of documents, in accordance with the original Order of Judge Clark, and seeking vacation of Friday's hearing and adjournment of it to another date. It is apparent from that letter that he has been receiving copies of the Orders to which I have referred.[12]The response of the Registrar was to refuse the application, referred to in that letter, and direct that the matter remain in the list for hearing on 27 February, indicating that the Appellant would be free to renew his submission. The Appellant has not appeared today before me, notwithstanding the Order sealed on 20 February 2004, to which I have referred, ordering him to attend in order to explain his non-compliance with the Practice Directions.[13]The entire history of this matter and the other Tesco cases, and, indeed, I take into account the history of the matter in relation to the Adlem appeal, plainly indicates a refusal and a plain intention to remain refusing, to comply with orders of tribunals, including this Appeal Tribunal, and, in particular, a persistent refusal to comply with the Order in this appeal.[14]Pursuant to the power that I have under Rule 26 of the Employment Appeal Tribunal Rules, I debar the Appellant from taking any further part in his appeal, and dismiss this appeal.