SODEXHO LTD v MR D A GIBBONS [2005] UKEAT 0318_05_2907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0318_05_2907Case No Appeal Nos. UKEAT/0318/05/TM UKEAT/0319/05/TM & UKEAT/0320/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SODEXHO LTDAPPELLANTMR D A GIBBONSRESPONDENT
Before
His Honour Judge Peter ClarkDate 29 July 2005
[1]APPEARANCES For the Appellant MR ALEX LOCK Solicitor Messrs Beachcroft Wansbroughs Solicitors 10-22 Victoria Street Bristol BS99 7UD For the Respondent MR NICHOLAS DUGDALE (Of Counsel) Instructed by: Messrs Abbott Lloyd Howorth Solicitors Minster Court 22-30 York Road Maidenhead Berks SL6 1SF SUMMARY Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. HIS HONOUR JUDGE PETER CLARK This case is proceeding in the Watford Employment Tribunal. The parties are Mr Gibbons, Claimant, and Sodexho Ltd, Respondent. I shall use those descriptions in this judgment. I have before me for Full Hearing appeals by the Respondent against 3 orders made by a Chairman, Miss D Thomas, sitting alone on 10 February 2005. For the purposes of this hearing, on 12 July, I varied the order made by His Honour Judge D Serota QC on 2 June 2003 to provide that I should sit alone on these appeals from a chairman sitting alone. Section 28(4) ETA 1996. It seems to me that Judge Serota's direction that the appeal be heard by a full division was made in error. There is no objection by the parties to my sitting alone. At the close of argument, I announced my decision. The appeals failed, as did the Claimant's application for costs in the appeals. My full reasons now follow. Procedural History[2]The Claimant presented his Originating Application to the Employment Tribunal on 18 June 2004. The claim was resisted. On 29 October 2004 a Preliminary Hearing took place before a Chairman, Mr C Ingham, sitting alone. The Chairman found that the claimant had little reasonable prospect of success (ET Rules 2004, R 20(1) and ordered the Claimant to pay a deposit of £500 as a condition of being permitted to continue to take part in the proceedings. That order, with reasons (the deposit order), was promulgated on 8 November. The order provided that the deposit must be paid within 21 days of the date of the order. A note to that order warned that failure to comply with the order may result in the whole or part of the claim being struck out. I interpose that Rule 20(4) of the 2004 Rules provides that if a deposit is not paid within 21 days of the date on which the document recording the order is sent out (or within a further period which is not strictly material in the present case). "a Chairman shall strike out the claim …"[3]The deposit was not paid within 21 days. On 16 December, after that period had expired, the Claimant's solicitor, who had represented him at the hearing on 29 October, telephoned the Employment Tribunal to enquire about the order which, Miss Thomas found, she had not received. She learned that the deposit order had been sent out on 8 November. She promptly wrote to the Employment Tribunal that day, enclosing a cheque for £500.00. That cheque was returned. On the same day, 16 December, a Chairman, Mr Adamson issued an order striking out the claim under Rule 20(4) for non-payment of the deposit. On 17 January 2005 he issued a certificate of correction, substituting the title 'Judgment' for 'Order' (the strike-out judgment).[4]Meanwhile, by letter dated 22 December 2004, the Claimant's solicitor applied for a review of the 'decision of Mr Adamson dated 16 December'. That letter concludes:
"We therefore request a review as the Applicant [Claimant] has suffered prejudice through no fault of his own and the Applicant's representatives were misled by the Tribunal office itself."
[5]It was that review application which came before Miss Thomas on 10 February 2005. The hearing proceeded in stages, leading to 3 separate orders. They were:(1) the review application succeeded. This first order (Order No 1) is dated 9 March 2005.(2) the strike out judgment made by Mr Adamson on 16 December 2004 was revoked. This second order (Order No 2) is dated 17 March 2005.(3) the Claimant was to pay a deposit in 21 days from the date of the third order (Order No 3) also dated 17 March . Reasons were given for each order made. The Facts[6]In the course of those reasons the Chairman made the following material findings of fact:(1) The Claimant himself lodged his form IT1. He there named as his representative Lynette Abbott a partner in the firm of Abbott Lloyd Howarth, Solicitors. He gave that firm's address for service of documents. However, he entered the wrong post code. He put SL8 5TW; the correct code appears to be SL6 1SF.(2) The Employment Tribunal sent out the deposit order on or before 8 November. A copy was received by the Respondent's solicitor on 8 November.(3) The Claimant's solicitor did not receive a copy until 16 December, that being a second copy sent out by the Employment Tribunal.(4) The probability was that the wrong address (as to post code) on the form IT1 resulted in non-delivery of the deposit order. The Orders under appeal[7]As to the 3 orders made by Miss Thomas, her reasoning may be summarised as follows:(1) the grounds for the review application were (ET Rule 34(3)(a)&(e) 2004 Rules) (a) administrative error and (e) interests of justice. She found that both grounds were made out. As to ground (a) under Rule 34(3), that "the decision was wrongly made as a result of an administrative error", she held that the expression "administrative error" could include an administrative error by a party. That was what happened here. The deposit order went astray in the post because the Claimant had put the wrong post code for his solicitor's (otherwise correct) address on the form IT1. That was the sole cause of his being out of time for lodging his deposit. Further she held that it was in the interests of justice to review the strike-out judgment under Rule 33(4)(e). A strike-out in the particular circumstances of this case would be disproportionate given the balance of prejudice between the Claimant and the Respondent. She rejected the Respondent's submission that the review application did not comply with Rule 35(2). She regarded the last sentence of the Claimant's solicitor's letter of 22 December, earlier set out, as encompassing a review application under grounds (a) and (e) of Rule 34(3).(2) the interests of justice required that the strike-out judgment be set aside.(3) the Judgment (following correction) of 16 December was a Judgment within the meaning of Rule 34(1)(b), that is, "a judgment (other than a default judgment [see Rule 8] but including an order for costs, expenses, preparation time or wasted costs);"[8]As to the original deposit order, Miss Thomas held that she had power to and did restart time running for the payment of the deposit from the date of Order No 3, that is 17 March 2005. The Appeals[9]Although these are appeals against 3 separate orders it is convenient to consider the Chairman's reasoning by reference to the 5 sequential points of appeal advanced by Mr Lock on behalf of the Respondent. (1) First it is submitted that the Chairman had no power to review the strike out judgment of Mr Adamson dated 16 December 2004. It is contended that it is not a reviewable judgment for the purposes of Rule 34(1)(b) of 2004 Rules. Rule 28(1)(a) defines a judgment as "a final determination of the proceedings or of a particular issue in those proceedings; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs." Mr Lock submits that a strike out under Rule 20(4) of the 2004 Rules is not a final determination of the proceedings because (a) there is no consideration of the merits of the claim,; (b) it is an administrative act by the Tribunal to prevent the claim proceeding in the Tribunal and (c) the Claimant is not precluded from bringing a claim in another jurisdiction, for example, a breach of contract claim.[10]In support of the general proposition that a Rule 20(4) strike out for failure to pay a deposit is a non-reviewable order within the meaning of Rule 34(1)(c) Mr Lock has taken me to the earlier EAT cases on the status of similar strike out orders under the 1993 ET Rules of Procedure.[11]In that connection I draw attention to a passage in Harvey on Industrial Relations and Employment Law, v.5, T614-624 which appears to support Mr Lock's submission. The learned editors write, having cited my judgment in Kuttapan v LB of Croydon [1999] IRLR 349, in relation to the PHR procedure:
"Second, a decision under Rule 20(1) [2004 Rules], whether to order a deposit to be paid or to refuse such an order, is not a decision or order that can be reviewed under Rule 34, and the same is true of the strike out order under Rule 20(4) (Rule 34(1); see also Kuttapan , and Maurice v Betterware UK Ltd [2001] ICR 14, EAT)."
[12]Having now considered the cases and the argument in the present appeals I have concluded that that proposition is only half right. I shall endeavour to explain why.[13]The starting point in the earlier cases is the EAT decision in Immigration Advisory Service v Oommen [1977] ICR 683 ((Keene J presiding)[14]It is right to say that the principal finding in Oommen , which I followed in Kuttapan (paras 22-23), has now been shown to be incorrect. The PHR procedure under the 1993 Rules was governed by Rule 7. Rule 7(7) provided, as does Rule 20(4) 2004 Rules, that a deposit ordered must be paid within 21 days "beginning with the day on which the document recording the making of the order is sent." Keene J held that "sent" meant, applying Section 7 Interpretation Act 1978, the date of deemed service in the ordinary course of post unless the contrary was proved; that is the date of receipt of the order by the paying party, not the date on which it was posted by the Employment Tribunal. However, in the later EAT cases of Hammersmith & Fulham LBC v Ladejobi [1999] ICR 637 and Mock v IRC [1999] IRLR 785 Morrison P held, in the context of the time for appealing to the EAT under Rule 3(3) EAT Rules 1993, as amended, that 'sent' meant the date appearing on the ET 'decision' (under the 1993 ET Rules). That conflict has now been resolved by the Court of Appeal in Gdynia American Shipping Lines (London) Ltd v Chelminsky [2004] IRLR 725 , approving the approach of Morison P. 'Sent' means the date on which the order is posted by the Employment Tribunal; the date on the document when the order was sent to the parties. In the present case Mr Ingham's order was sent to the parties on 8 November 2004. The 21 days began to run from that date.[15]Pausing there, I have no doubt that Mr Ingham's order of 8 November was properly described. It was an order issued in relation to interim matters requiring a person to do (or not do) something, within the meaning of Rule 28(1)(b) of the 2004 Rules, as opposed to a 'judgment' as defined in Rule 28(1)(a).[16]The question, however, at this stage of the appeals is into which category did Mr Adamson's strike-out order/judgment of 16 December 2004 fall? It will be recalled that it was originally issued as an order and later corrected to judgment.[17]I have indicated that in my opinion the passage cited earlier from Harvey , T614 was half-right. It was correct in saying that the order to pay a deposit under Rule 20(1) was an order within the meaning of Rule 28(1)(b) of the 2004 Rules and thus not reviewable by virtue of Rule 34(1)(c); but what of a subsequent strike-out?[18]Mr Lock's submission, in line with the passage in Harvey , is that a strike-out order under Rule 20(4) 2004 Rules is not reviewable, applying Kuttapan and Maurice v Bettaware . In my judgment there has been a material alteration effected by the 2004 Rules which means that those cases decided on the wording of the 1993 Regulations and Rules cannot now be applied to the current Rules. It is necessary to trace the history.[19]It is set it out at paragraphs 31-36 in Kuttapan . Prior to the 1993 Rule changes a strike out order was not a decision capable of review. Casella London Ltd v Banai [1990] ICR 215[20]However, Regulation 2(2) of the 1993 Regulations included, in the definition of a decision, orders striking out an Originating Application or Notice of Appearance made under Rule 4(7) (failure to comply with orders for particulars, discovery (disclosure) or written answers) and Rule 13(2) (frivolous or vexatious conduct or pleadings) of the 1993 Rules. That new definition did not, it seemed to me, extend to a strike-out order for non-payment of a deposit under Rule 7(7). ( Kuttapan , para 34).[21]Whereas I recanted from my view expressed in Kuttapan , following Oommen , as to the meaning of 'sent' when Gdynia came before me in the EAT, I adhere to the view ( Kuttapan , para 34) that the definition of decision in the 1993 Regulations (repeated in the 2001 Regulations) did not extend to a strike-out order under Rule 7(7) for non-payment of a deposit.[22]However, that distinction between different types of strike-out order is not, it seems to me, replicated in the 2004 Rules.[23]Regulation 18(7) of the 2004 Rules substantially repeats the grounds for striking out contained in Rule 13(2) of the 1993 Rules (Rule 15(2) of the 2001 Rules). Those striking-out orders were classified as decisions for the purposes of the review procedure contained in Rule 11 1993 Rules (Rule 13 2001 Rules). However, the definition of 'judgment' contained in Rule 28(1)(a) of the 2004 Rules, reviewable under Rule 34(1)(b) draws no distinction, as did the earlier 1993 and 2001 Rules, between a strike-out under new Rule 18(7) and one under Rule 20(4). Thus, as a matter of construction, if a strike-out under Rule 20(4) is a 'judgment' it is reviewable under Rule 34(1)(b).[24]As to that question, Mr Lock submits that although a strike-out is final in the sense that it ends the proceedings in the Employment Tribunal it is an administrative, not judicial act by the Chairman, and it is not final because, in certain circumstances, the struck out party will not be prevented from re-litigating the claim in the civil courts. I deal with each of these propositions in turn.[25]First, it is said that because the Chairman has no discretion under Rule 20(4); if the deposit is not paid within 21 days of the order being sent the Chairman shall strike out the claim and because there is no consideration of the merits of the claim, this is an administrative act, not a judicial determination.[26]I do not accept that submission. During the case of argument I mentioned the principle in Barber v Staffordshire County Council [1996] IRLR 229 (CA), that an order dismissing an Employment Tribunal claim on withdrawal by the Claimant is a judicial decision giving rise to cause of action estoppel. Contrast the mere fact of withdrawal, which does not Dattani v Trio Supermarkets Ltd [1998] IRLR 240 (CA). By analogy, it seems to me, a strike out order made by a Chairman under Rule 20(4) is a judicial determination. It is final because the claim cannot be relitigated in the Employment Tribunal. A further basis for my finding that the Rule 20(4) strike-out was a judicial determination occurred to me as I prepared my full reasons for dismissing these appeals. It was not the subject of argument before me and thus the following remarks are strictly obiter , that is, they do not form part of my reasoning. It seems to me that Rule 3 of the 2004 Rules provides a clear example of the true distinction between an administrative and judicial act. Rule 3(2) provides that the Secretary shall not accept a claim if it is not properly constituted. That is an administrative act. If so, he shall, under Rule 3(3) than refer the claim together with his reasons for not accepting it to a Chairman. The Chairman shall then decide whether or not the claim should be accepted. That is a judicial decision. By the same token, the decision made by a Chairman under Rule 20(4) is a judicial determination, not an administrative act.[27]I prefer to let Mr Lock's second submission lie moot in the context of the present case. I accept that claims for breach of contract may be brought both in the Employment Tribunal by virtue of the Extension of Jurisdiction Order 1994 and in the civil courts, however Mr Gibbons' claim is, as presently constituted, solely one of unfair dismissal. The statutory right not to be unfairly dismissed is not justiciable in the civil courts.[28]It follows, in my judgment, that the 2004 Rules throw up a slightly curious procedural change from the previous regime. Whereas an order for a deposit under Rule 20(1) is not reviewable under Rule34(1)(b), a strike-out order under Rule 20(4), being a judgment under Rule 28(1)(a), is. That distinction has led to procedural difficulties in the present case, to which I shall return. (2) Given that the strike-out judgment of Mr Adamson was reviewable, Mr Lock's next submission is that the application for review made on the Claimant's behalf by his solicitors in their letter to the Employment Tribunal dated 22 December 2004 was improperly made and thus not a valid application for review.[29]Mr Lock has referred me to Rule 25(2) 2004 Rules which provides, so far as material:
"The application [for review] must be in writing and must identify the grounds of the application in accordance with Rule 34(3) …"
Rule 34(3) sets out the grounds for review. Those material to the instant case are: (a) the decision was wrongly made as a result of an administrative error; …… (e) the interests of justice require such a review."[30]He refers also to the earlier provision in Rule 13(4) of the 2001 Rules, which states that an application for review following the relevant hearing "must be in writing and must state the grounds in full." A similar provision appeared in Rule 11(4) 1993 Rules.[31]Mr Lock argues that the solicitors' letter of 22 December was defective in that it did not specify grounds (a) and (e) of Rule 34(3) by number, nor reproduce the wording of those sub-paragraphs.[32]That submission was considered and rejected by the Chairman below. Her reasoning is contained at paragraphs 13-14 of her Order No 1 Reasons. She held that Rule 35(2) did not require the degree of specificity advanced by Mr Lock; rather, it was sufficient to set out the basis of the application from which it could be discerned which grounds were relied on. She looked particularly at the last sentence of that letter and was in no doubt that grounds (a) and (e) were in point.[33]I see no basis for impugning the Chairman's approach. It will often be the case, although not here, that review applications will be made by litigants in person. That is the nature of a good deal of Employment Tribunal litigation. If a Chairman, considering an application for review, is in doubt as to the grounds relied upon he or she may require the applicant to specify them. Alternatively, the other party may seek further particulars. Mr Lock accepts that his clients were not at a disadvantage. The hearing on 10 February proceeded on the basis that grounds (a) and (e) of Rule 34(3) were in play. In these circumstances I reject this second ground of appeal. (3) Next it is said that even if the review application was properly constituted and the strike out judgment properly reviewable, nevertheless the Chairman was wrong in law to find that the judgment was reviewable on the basis of "administrative error" under Rule 34(3)(a).[34]Mr Lock submits, as he did below, that here the error leading to non-delivery of the 8 November Order was that of the Claimant. He put the wrong post-code for his solicitors' address on the form ET1. That, the Chairman found, was the cause of the order not being delivered by post. A party cannot rely on his own mistake as a ground for reviewing a judgment properly made, submits Mr Lock.[35]The Chairman took a different view. She held that the expression "administrative error" covered not simply errors on the part of the Employment Tribunal staff; an example, I interpose, might be where an order was not posted. It covered also the present situation where the Claimant made an administrative error in appending the wrong post code to his solicitors' address on the form IT1.[36]Mr Lock has referred me to a dictionary definition of "administrative". It includes the expression "Pertaining to management of affairs". That, it seems to me, covers completion of the form ET1 by the Claimant.[37]Further, it is instructive to note the change in wording between the old Rules (respectively Rule 11(1) of 1993 Rules and Rule 13(1) 2001 Rules) and the 2004 Rules.[38]The formulation in both earlier instances was:
"(a) the decision was wrongly made as a result of an error on the part of the tribunal staff."
[39]In these circumstances it was plain that an error, administrative or otherwise, by one party could not be relied upon by him to bring him within ground (a) for review.[40]The new formulation, in Rule 33(4)(a) 2004 Rules, is significantly different. It is not limited to Employment Tribunal staff errors. It speaks of administrative error. Purely as a matter of construction I reject Mr Lock's contention that the changed wording is simply designed to cover errors caused by faulty equipment in the Employment Tribunal office, or the acts of agency staff engaged on administrative duties in that office. It is not limited in any way. I agree with the Chairman that it is capable of covering an error of the type which arose on the part of the Claimant here.[41]Again, that disposes of the point in the appeal. The Chairman was entitled to carry out a review under Rule 33(4)(a). However it occurs to me that there may be an explanation, not discussed in argument before me, for the change in wording.[42]The 2004 Rules introduce what, on one view, may be thought to be a series of carefully crafted hurdles designed to restrict access to Employment Tribunals and thus reduce the costs of administering the Employment Tribunal system to both Claimants and Respondents. I take one example from cases which have already came on appeal to the Employment Appeal Tribunal. Under Rule 6(2)(b) the Secretary shall not accept a response (see Rule 4) which has not been presented within 28 days (Rule 4(1)), subject to a prescribed extension of time. The Respondent e-mails his response, within time, to the Employment Tribunal but types in the wrong e-mail address of the Employment Tribunal office. He omits two letters in the address. It does not arrive in time. The Secretary then refers the response, with his reasons for refusing to accept the response to a Chairman (Rule 6(3)) who decides (Rule 6(4)) not to accept the response. That decision by the Chairman is open to review in accordance with Rules 34-36 (see particularly Rule 34(1)(a)); Rule 6(6). By Rule 34(4) a decision not to accept a response may only be reviewed on grounds (a) or (e) of Rule 34(3). Rule 34(3)(a) is the "administrative error" ground. In my example, it seems to me, the Respondent's failure to use the correct e-mail address of the Employment Tribunal office, albeit his "fault," is an administrative error rendering the Chairman's decision to refuse to accept the response reviewable. The parallel between that example and the facts of the present case is obvious. (4) Even if the Chairman's decision to review the struck out judgment in the present case under ground (a) of Rule 34(3) was impermissible, contrary to my findings, what of the interests of justice ground (e) on which the Chairman also based her review decision?[43]Here, Mr Lock argues that it was not open to the Chairman to find that the interests of justice required a review on the basis that the balance of fairness lay with the Claimant. Absent a review the struck out judgment would stand and he would be prevented from pursuing his claim on its merits. She did not consider that any serious prejudice would be caused to the Respondent by a slight delay in bringing the matter to a substantive hearing. Although the Claimant did make the error from which the judgment resulted, and in that sense caused it, it was not his fault in any significantly culpable sense. There was no costs penalty incurred by the Respondent (Order No. 2 Reasons, paragraphs 6-9).[44]Mr Lock drew my attention to a passage, copied within the bundle of authorities lodged in these appeals, taken from Harvey v5, T 1139, where it is said: "Cases in which they only application [for review] is made under para (e) [R34(3)] fall into two broad categories: those in which there has been a 'procedural mishap' of one sort or another (see Trimble v Supertravel Ltd [1982] IRLR 451, at 453, [1982] ICR 440, at 443H, per Browne-Wilkinson J), and those in which the tribunal's decision has been undermined be events occurring shortly thereafter".[45]He submits that the present case falls within neither of these categories and that the Chairman applied too wide a test for the interests of justice when she said (Order No 2 Reasons para 2): "The essential question therefore is whether confirming the [struck out] judgment will be more unfair to the Claimant than revoking would be to the Respondent".[46]It is quite correct to say that in the past the interests of justice ground for review has been restrictively construed. See Trimble , Flint v Eastern Electricity Board (1975) ICR 395 and Lindsay v Ironsides Ray and Vials [1994] ICR 384, where the Employment Appeal Tribunal (Mummery P) held that is was not a procedural mishap giving rise to a review that a party's representative had failed to argue the case properly (equally, not something which would ordinarily allow a new point to be taken on appeal to the Employment Appeal Tribunal: see Kumchyk v Derby CC [1978] ICR 1116 ; reinforced by the Court of Appeal in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 .[47]However, the section of Harvey on which Mr Loch relies and which has been copied for me, includes, at paras 1139-1140, reference to the judgment of Hooper J, sitting in the Employment Appeal Tribunal, in Williams v Ferrosan [2004] 607. It is a case which requires, in my respectful view, rather more prominence than hitherto. I drew the advocates' attention to the report of that judgment.[48]The problem in Williams may be shortly stated. At a remedies hearing before an Employment Tribunal, an issue arose as to whether that part of an award of compensation reflecting the Claimant's loss of future earnings was taxable. The Chairman and legal representatives for both parties took the view that it was not and consequently compensation under that head was calculated net of tax. When the Inland Revenue indicated that this part of her loss was taxable, the Claimant applied for a review in the interests of justice. The Chairman refused her application; the Respondent was entitled to the benefit of the principle of finality of litigation.[49]The Claimant's appeal succeeded. The Employment Appeal Tribunal was taken to a number of the earlier cases on the point, but Hooper J drew attention to regulation 10 of the 2001 Regulations which then applied. It opens: "The overriding objective of the rules is to enable tribunals to deal with cases justly…that includes, among other things, ensuring that the case is dealt with expeditiously and fairly (regulation 10(2)(d)).[50]Having considered the earlier cases, taking into account regulation 10, introducing the overriding objective into Employment Tribunal Rules for the first time in 2001, Hooper J said (paragraph 17): "On the facts of this case, we have no doubt that the 'interests of justice' required that the error be put right at a review and that putting it right at a review would be dealing with the case 'justly'".[51]The overriding objective is replicated in regulation 3 of the 2004 Regulations.[52]Applying the approach in Williams , not apparently cited to or mentioned by the Chairman, I am satisfied that her approach in formulating the "essential question" was correct. It required her to determine the application justly. That she did by balancing the interests of both parties and exercising her judgment permissibly in favour of the Claimant, looking at similar factors to those arising on consideration of an application to amend a pleading (see Selkent v Moore [1996] IRLR 661 (Mummery P)). (5) Thus far, following the sequence of well-organised submissions advanced by Mr Lock on behalf of Respondent, I am against him. In my judgment the Chairman was entitled to review Mr Adamson's struck out judgment and revoke it. However, that is not the end of the story. I come now to the Chairman's Order No 3.[53]Although the struck out order was revoked, what of the original deposit order, that could not be reviewed, not being a judgment? The Claimant remained in breach of that order and Rule 20(4) mandates the Chairman to strike out the claim in those circumstances. There is no discretion. But it is clear that, as a matter of justice, the Chairman did not believe that his claim ought to be struck out, effectively for getting his solicitor's post code wrong. What, then, was to be done?[54]I mean no disrespect to the Chairman in not setting out in full her reasoning leading to Order No 3. It included two propositions which are attacked by Mr Loch in his final ground of appeal;(a) that the Interpretation Act 1978 permitted the deposit order made by Mr Ingham on 8 November and the Chairman's own Order No 3 to be read as one order, and(b) the 21 day time limit appearing on the face of Mr Ingham's order of 8 November did not form part of his decision and therefore to extend time would not alter his order.[55]I have little difficulty in accepting Mr Lock's submission that both propositions are wrong in law. Order No. 3 made by the Chairman was to extend the Claimant's time for paying the deposit to 21 days from the date of her order, 17 March 2005 (a direction with which Claimant has now, Mr Lock very fairly tells me, complied). I can see no basis for reading that order with Mr Ingham's order as one. It is plainly a variation of Mr Ingham's order, extending time for the payment of the deposit. Secondly, it is plain on its face that Mr Ingham's order of 8 November provided for the deposit to be paid within 21 days of that date. Not only does that direction appear in the order; it is a mandatory time limit under R20(4).[56]I should add that, in the best traditions of the bar, Mr Dugdale neither conceded that point, in the interests of his client, nor sought to advance any submissions in support of the Chairman's reasoning. To do so, in my view, would be to argue the unarguable.[57]So the point is reached that having succeeded in his review application in respect of the struck out judgment, the Claimant must fall at the final fence. He cannot escape the effect of the original deposit order. Or can he?[58]It is perhaps unfortunate that the Chairman's attention was not drawn to Rule 10(1) 2004. Rules nor did she invoke it on her own initiative. That Rule opens:
"(1) Subject to the following rules, the Chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate…"
[59]On my own initiative, I referred the advocates to the examples of orders which may be made under Rule 10(1) in Rule10(2) and in particular Rule 10(2)(n):
"Varying or revoking other orders"
[60]Again, the historical context of the 2004 Rules assists. I earlier described the second of three miscellaneous propositions relating to PHR's in Harvey T614 as half-right; wrong in saying that a struck out order under R20(4) is not reviewable; correct in saying that a deposit order was not reviewable. However, the next proposition in the text, drawn from the cases of Kuttapan and Maurice v Betterware , is also half right. It is said: "Third, although there is no power of review in these situations, the power to make case management orders under R10 includes the power to vary or revoke other orders (see R10(2)(n)) and so can be relied upon to set aside a deposit order made under Rule 20(1)…and set aside or revoke a striking out order wrongly made under R20(4) (see also Kuttapan and Maurice, in which the EAT held that such powers existed under the less explicit previous rules). In such cases the party seeking to challenge the order may apply under Rule 11 to have the order varied or revoked, and also to apply for a further PHR to be held".[61]By parity of earlier reasoning, that proposition is correct in relation to deposit orders, but not strike-out under R20(4), which are subject to the review procedure under Rs 34-36.[62]At paragraph 20 of Kuttapan , I posed five questions for consideration in that appeal. The fifth question, relevant to the present case, was this:
"Does the tribunal have power to extend time for complying with the order to pay a deposit other than under Rule 7(7)(b)?"
Rule 7(7)(b) of the 1993 Rules, equivalent to 20(4)(b) of the 2004 Rules, allowed for an extension of the 21 day time limit, up to a maximum of 14 days, based on representations made by the paying party within the initial 21 day period (not applicable in the present case). We answered that question at para 38, Kuttapan : "Following Oommen (691H) the tribunal has power under Rule 15 to extend the time for paying a deposit provided for in Rule 7(7), if necessary after time under that rule has expired".[63]In Oommen , although not strictly necessary for the Employment Appeal Tribunal's decision in that case, Keene J said:
"That is sufficient to dispose also of the appeal itself. But, having heard the arguments about the industrial tribunal's powers to extend time under rules 7 and 15 of the Rules of 1993, we would express briefly our tentative view on that issue. Our view is that there is no reason why the general power given to a tribunal chairman by rule 15 to extend time should not be applicable in cases falling within rule 7. The wording of rule 15 provides such a power to extend time "for doing any act appointed by or under these rules."
There is no express exclusion of rule 7 cases from that power, which applies to any act under the rules". R15 of the 1993 Rules provided: "Extension of time 15. (1) A chairman an may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired".[64]The equivalent provision in the 2004 Rules is to be found in Rule 10(2)(e), which provides, as one of the examples of orders which may be made under Rule 10(i)(e) extending any time limit, whether or not expired [subject to a number of exceptions which do not include R20(4)].[65]Keene J returned to this point, which did arise directly for consideration, in Maurice v Bettaware , holding that there was no limit to the number of times a PHR might be held under Rule 7(1) of the 1993 Rules, and that although a deposit order under Rule 7 was not a reviewable "decision" under those Rules there was power under Rule 16(1) enabling Employment Tribunals to give directions on any matter arising in connection with the proceedings.[the predecessor to Rule.10(1) 2004 Rules], following Kuttapan and the earlier Employment Appeal Tribunal judgment of Waterhouse J in Nikitas v Solihull Metropolitan. BC [ 1986] ICR 291 295 C-D cited in Kuttapan , paragraph 37.[66]Thus, on the face of it, the Chairman could have, but did not, take the route of Rule.10(2)(n) read with Rule.10(2)(e) to vary the order of Mr Ingham by extending time for the Claimant to lodge his deposit to 21 days from the date of her Order No.3. Where does that leave this appeal?[67]The first point to make is that the point was not argued before the Chairman (see Kumchyk ); nor is it raised by way of the Respondent's Answer. How then, may it assist the Claimant?[68]I have found that the Chairman fell into error in her approach contained in her Order No.3 Reasons. In these circumstances the following options are open to me:(1) Allow the Chairman's decision to stand, notwithstanding the misdirection in law, but only where the decision is "plainly and unarguably right". ( Dobie v Burns [1984] ICR 812 (CA)). That approach applies equally to procedural errors as to substantive law errors. Bache v Essex CC [2000] ICLR 251 (CA).(2) Allow the appeal and reverse the Chairman's order where it is plainly and unarguably wrong ( Hellyer Bros v Mcleod [1984] ICR 526.(3) Remit the matter to an Employment Tribunal for rehearing.[69]In deciding on the appropriate course to take in the present case I must, of course, have due regard to the strictures of the Court of Appeal on the exercise of the Employment Appeal Tribunal's powers in Bennett v LB of Southwark [2002] IRLR 407 .[70]These powers are contained in Section.35(1) ETA 1996, which provides:
"(1) for the purpose of disposing of an appeal, the Appeal Tribunal may- (a) exercise any of the powers of the body…from which the appeal was brought, (b) remit the case to that body…"
The powers of the Employment Tribunal, from which these appeals are brought, include the power under Rule.10 to make an order, of my own initiative, to vary Mr Ingham's deposit order by extending time notwithstanding that the time allowed under that order has expired. Put another way, I am not satisfied that the Chairman's decision to extend time for payment of a deposit was plainly and unarguably wrong on the facts of this case and if I were to allow the appeal and remit the matter to an Employment Tribunal Chairman he would then be faced with a properly constituted application under Rule.11(1) which provides:
"At any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a CMD or PHR to be held."
[71]Mr Dugdale and those instructing him may not have relied on R.10 first time round, but it is clear from the alacrity with which he seized this opportunity when raised by me during argument that he would not miss the opportunity on remission.[72]I also bear in mind that, since 1 October 2004, the overriding objective is now, by Rule.2A, incorporated into the Employment Appeal Tribunal Rules 1993. It seems to me that where the Chairman below has made all necessary findings of fact but has reached her decision by the wrong legal route, I am in as good a position as another Chairman to arrive at a decision by the correct route. In these circumstances the need to deal with this case expeditiously and fairly requires me to consider the application of Rule10, subject to proper safeguard afforded to the Respondent.[73]These include, first, an adequate opportunity to respond to the point. I raised it with Mr Lock during his opening submissions and left it until after Mr Dugdale's response before seeking a reply. Mr Lock then accepted that, under Section.35(1)(a) ETA, the Rule.10(2)(n) route was open to me as a way of disposing of the appeal.[74]A further safeguard is to ensure that the Rule.10 procedure is properly applied to the facts of the case. Although paragraph (2) of the holding in the headnote to the ICR report of Maurice v Bettaware (approved by the Judge) accurately reflected Keene J's observation that there was no limit on the number of times a PHR could be held under Rule.7(1) 1993 Rules (and, I would add, R.11(1) 2004 Rules), on the facts of that case, where 2 PHRs were held by different Chairmen, each coming to the opposite conclusion as to whether or not a deposit should be ordered, his Lordship went on to hold that a second PHR ought not to be held in the absence of a material change of circumstances. Since there had been no material change the second PHR order was quashed on appeal. See also the need for a material change of circumstances before altering an earlier order which I explored in Goldman Sachs Services Ltd v Montali [2002] ICR 1251 .[75]Thirdly, Mr Lock submitted that there had been no application made by the Claimant on 10 days notice for an order under Rule.10(2), as required by R.11(2) 2004 Rules. True it is; however, Rule 11(2) permits a Chairman to allow for shorter notice if it is in the interests of justice to do so. I find that it is, treating Mr Dugdale's submission as an application by the Claimant under Rule 11(1); alternatively, exercising the power of a Chairman under Rule 12(1) to make an order on his own initiative with or without a hearing (in this case, with a hearing). I also bear in mind the notice requirements under Rule 19(1) of the 2004 Rules, which obviate the need for written notice in relation to Rule18(7) strike-outs where the parties are given an opportunity to be heard.[76]Turning to the substantive point, I am satisfied that there has been a material change of circumstances since the deposit order was made by Mr Ingham, namely that the order dated 8 November, although sent by the Employment Tribunal, never reached the Claimant because he had put the wrong post code for his solicitor's address on his form IT1 (as found as fact by Miss Thomas). I am satisfied that but for that lack of notice, caused by his own error, the Claimant would have paid the deposit within the 21 days ordered. I base that finding on(a) the Claimant's solicitor tendering a cheque for £500.00 on 16 December 2004, as soon as it was realized that the Claimant was out of time and(b) the fact that the Claimant did pay the deposit within 21 days of 17 March 2005, as directed by Miss Thomas in Order No.3.[77]In these circumstances, exercising the discretion afforded to a Chairman under Rule 10(2)(e) and (n) I shall extend time for payment of the deposit under Mr Ingham's order to 21 days from 17 March 2005, thus upholding Miss Thomas' Order No.3 but for different reasons. I do so in exercise of my powers under Section.35(1)(a) ETA. Accordingly the appeal against Order No.3 fails and is dismissed. Summary[78]My principal findings in this judgment may be reduced to the following propositions:(1) A strike out under Rule 20(4) 2004 Rules is a judgment within the meaning of Rule 28(1)(a) and is reviewable under Rule 34(1)(b).(2) A review application will be properly constituted under Rule 35(2) if the grounds under Rule 34(3) may be discerrned from the document containing the application; in the event of doubt it is open to the Chairman of his own initiative or the opposing party on application under Rule 11, to seek additional information under R.10(2)(b).(3) The expression "administrative error", introduced into the Tribunal Rules of Procedure for the first time in the 2004 Rules by Rule34(3)(a) covers such errors by the parties, as well as the Employment Tribunal staff (but not the Chairman).(4) The "interests of justice" ground for review contained in Rule 34(3)(e) should not be construed as restrictively as it was before the 2001 Rules introduced the overriding objective, now contained in regulation 3 of the 2004 Regulations. See Williams v Ferrosan .(5) A deposit order under Rule 20(1) 2004 Rules is not a judgment within Rule 28(1)(a); it is an order within Rule 28(1)(b) and as such is not susceptible to review by virtue of Rule 34(1)(c).(6) A deposit order may nevertheless be the subject of revocation or variation under Rule 10(2)(a) including an extension of time for payment, notwithstanding that the time for payment has expired (Rule 10(2)(e)).(7) An application for such variation or revocation by a party should be made not less than 10 days before a hearing at which it is considered, (unless a Chairman permits shorter notice (Rule 11(2)). Alternatively, a Chairman may make such an order on his own initiative (Rule 10(1)), subject to the safeguards permitting the other party to be heard or make representations (Rule 12). Conclusion[79]For these reasons, these appeals are dismissed. Costs[80]Having successfully resisted the appeals Mr Dugdale applied for the Claimant's costs in the appeals. I refused that application.[81]It should be noted that from 1 October 2004 the Employment Appeal Tribunal Costs Rule has changed. It now reads:
"R.34A (1) Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings by the paying party, the Appeal Tribunal may make a costs order against the paying party."
New sub-rules (2) and (3) are not strictly material in the present case.[82]I emphasize the additional ground for ordering costs, that the appeal is misconceived, which I take to include having no reasonable prospect of success (applying the definition of 'misconceived' to be found in Regulation 2 of the 2004 Employment Tribunal Regulations, replicating the definition in Regulation 2 of the 2001 Employment Tribunal Regulations).[83]In the present case I am quite satisfied that these appeals fall under none of these descriptions. On the contrary, the procedural points were plainly arguable, albeit the Respondent's argument failed in relation to Orders No.1 and No.2; in relation to Order No.3 errors of law were identified but in the event that Order stands for the reasons I have given.[84]By way of postscript I have found the points raised in the appeals of considerable interest and some importance. Standing back, one can only speculate at what Lord Donovan and the members of his Commission, reporting in 1965, would have made of the arcane procedural points quite properly raised by Mr Lock on behalf of the Respondent and discussed in this Judgment. However there is a serious point emerging from this case. Whilst it may on close analysis, become tolerably clear to a practitioner in the field of employment law appearing in employment tribunals (ITs) for 25 years and with a further 10 years experience sitting in this specialist appeal tribunal, what is the difference between a reviewable strike out judgment and a deposit order which, whilst not reviewable, may be varied through the , now, Rule 10 procedure, the same is not necessarily true of litigants in person or their representatives, legally qualified, or otherwise, or even Chairmen of Employment Tribunals and learned commentators on the subject. I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding object and the increased powers of Employment Tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions. That is the approach which this Chairman took in the present case; whilst her reasoning was, in part, strictly unsustainable, the result was not.

Cited in 1 later judgment