MS M SHAH v HADEN BUILDING MANAGEMENT LTD [2005] UKEAT 0400_05_2809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0400_05_2809Case No Appeal No. UKEAT/0400/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M SHAHAPPELLANTHADEN BUILDING MANAGEMENT LTDRESPONDENT
Before
His Honour Judge AnsellDate 28 September 2005
[1]APPEARANCES For the Appellant MISS JUDE SHEPHERD (Of Counsel) For the Respondent MS ALISON WETHERFIELD Representative Instructed by: Messrs McDermott Will & Emery LLP Solicitors 7 Bishopsgate London EC2N 3AR SUMMARY Service of notice of pre-hearing review on representatives who had made application to the Tribunal even where they sought to reserve their position in a letter to the employer's solicitors held to be valid. HIS HONOUR JUDGE ANSELL This is the hearing of an appeal from a judgment of a Chairman sitting alone (Mrs L Goldman) at Stratford who following a hearing on 14 April 2005 in a Decision sent to the parties on 27 April ordered that the Originating Application was struck out for non compliance with the orders of the 8 December 2004 and 21 January 2005. Leave for this hearing was given by His Honour Judge Reid QC in Chambers on 4 July 2005. At the commencement of the hearing before me application was made by Miss Jude Shepherd, Counsel who had recently been instructed by the Appellant, for leave to amend the grounds of appeal. After reading a short statement of the Appellant and hearing argument from both representatives, I allowed the proposed amendment for the reasons that I gave and which had been set out in a separate Decision.[2]The background facts are that the Appellant filed her IT1 on 23 December 2003 making claims for race and sex discrimination, victimisation, unfair dismissal, breach of contract and authorised deductions. The application had been filed on behalf of the Appellant by her then solicitors Messrs Charles Russell whom she had instructed around October 2003 and who continued to act for her until around March 2004. The Appellant had previously received advice from another firm of solicitors while she was still employed. A response was filed on 23 January 2004 and there was a hearing for directions on 27 May 2004 at which amongst other orders, the Tribunal directed that the Appellant provide further and better particulars of her application on 24 June 2004. A summary of the directions hearing together with the orders made was set out in a letter from the Tribunal dated 4 June 2004. The Appellant requested and was granted 2 seven-day extensions for compliance with the order and eventually on 8 July supplied 42 pages of further and better particulars. On 26 August 2004 the case was listed for five working days commencing the 19 January 2005 but because of disagreements between the parties about listing, a Case Management Discussion was listed for 8 December 2004. At that hearing the Respondents complained that the Appellant continued to refuse to give details on the witnesses that she intended to call even though she was claiming that the hearing would need to occupy the Tribunal's time for 10 days. The Respondents contended that the allegations brought by the Appellant totalled 81 paragraphs in her further and better particulars and therefore it was only just and equitable in accordance with all aspects of the overriding objectives to the Respondents having some full knowledge of the people it was alleged that witnessed these incidents. The Chairman made an order that the Appellant by 4 January 2005 to provide the Tribunal and the Respondents with further and better particulars of the further and better particulars served on 8 July 2004 setting out in relation to each and every allegation whether or not it was the case that the incidents relied upon was witnessed and if so by whom. This order contained the usual warning that a failure to comply could result in either an order for costs or a strike out order. The January hearing dates were vacated.[3]On 4 January 2005 the Appellant wrote to the Tribunal enclosing a medical report that she should refrain from work for 7 days from the 4 January 2005 and she claimed that she was suffering from vomiting and temperature and headaches and had been unable to complete the particulars. The Respondent's solicitors having seen the letter wrote to the Tribunal objecting to any indefinite delay and requesting the Tribunal set a date a pre-hearing review to consider strike out in accordance with the warning set out in the Case Management Order.[4]As a result the Chairman of the Tribunal made what the Stratford Chairman, Mrs Goldman described as an Unless Order. In fact the order had to be issued on 3 occasions since the first two versions omitted the date for compliance with the order. The final version was sent out on 21 January and in the light of the submission that has made before me it is right that I set out the full[5]On 28 January Employment Dispute Consultants, Employment Lawyers, instructed by the Appellant wrote to the Respondent's solicitors as follows:
"Please find enclosed two applications to the Employment Tribunal. The details of the applications and reasons why they are sought are contained therein. Notification of any objection to any application must be sent to the Employment Tribunal within 7 days. Any objection to the application must be copied to both the Employment Tribunal and our client. Please note that we have not yet received formal instructions from the Claimant to act in this matter. Therefore, would you please continue to correspond with the Claimant until this time."
That letter enclosed a copy of the letter sent to the Regional Secretary for the Tribunals which having set out the background to the case and other matters including instructions from the Appellant as to why she had not complied with the order concluded by applying to the Tribunal for either a revocation of the order alternatively an application to vary the directions including an application to extend time for compliance to the 28 February. Both applications concluded with these words:
"We confirm that we have complied with Rule 11 by fax to the Respondent today."
On 31 January the Respondent's solicitors wrote to the Tribunal informing them about the cover letter from Employment Dispute Consultants in which they indicated they were not formally instructed and requesting that the Tribunal refused the application being made to set aside and/or vary the order and to strike out the Appellant's claim as the date of non-compliance past.[6]On 4 February the Tribunal wrote to Employment Disputes Consultants in the following terms:
"We have received your letter of 28 th January 2005. It is not clear whether you are now instructed by the Claimant. Indeed Mc Dermott Will & Emery in their letter to us of 31 st January 2005 state that when their copy of your letter of 28 th January 2005 you indicated to them that you were not formally instructed Please confirm the position and in the meantime we will continue to communicate with the Claimant direct."
On the same day, the Tribunal wrote to the Appellant and the Respondent's solicitors informing them that the Chairman had indicated that a pre hearing review date should be fixed and concluding with these words:
"A notice of hearing will be sent in due course."
A notice of hearing for 14 April was sent out on 24 February to Employment Dispute Consultants and the Respondent's solicitors and contained the following:
"1. A chairman has directed that a pre-hearing review is to be held. The specific preliminary issue to be considered at the hearing is as follows: Whether or not the originating application should be struck out for non compliance with orders of 8 December 2004 & 21 January 2005."
[7]On 28 February Employment Dispute Consultants responded to the Tribunal in the following terms:
"We refer to the Notice of Hearing dated 24 th February 2005 sent to us. Please note that we are not instructed by the Claimant in this matter. All correspondence should go directly to the Claimant."
The Claimant was not informed directly by the Tribunal of the hearing date until a letter of 11 April sent to her which enclosed a copy of the original hearing notice. It is agreed that that letter was received by the Appellant on 12 April and she responded on the 13 th :
"Thank you for you r letter dated 11 th April 2005 that I received yesterday. Please note that Employment Dispute Consultants have not been representing me and therefore any correspondence should be sent directly to me. Unfortunately, I did not receive the letter from the Employment Tribunal of the Notice of Hearing dated 24 February. I also have not received a copy of the Notice of Hearing with the letter that I received yesterday, although it states that a copy is enclosed. I will be unable to attend the Pre-Hearing Review for this Thursday 14 April, as it is too short notice."
[8]In the light of that background I now deal with the issues raised in this appeal. Notice of Hearing The relevant provisions of the Notice are contained in the Employment Tribunals (Constitution and Rules) Regulations 2004 Schedule 1. Regulation 14(4) provides that:
"(4) Unless the parties agree to shorter notice, the Secretary shall send notice of any hearing (other than a case management discussion) to every party not less than 14 days before the date fixed for the hearing and shall inform them that they have the opportunity to submit written representations and to advance oral argument. The Secretary shall give the parties reasonable notice before a case management discussion is held. Regulation 61(4) provides that: "
A notice or document sent or given to the authorised representative of a party should be taken to have been sent or given to that party."[9]The Tribunal's conclusions of the Notice of Hearing was set out in paragraph 17 of their Decision thus:
"17 The Tribunal accepts the Respondent's submission that the Claimant was put on actual notice of this hearing and has been given the opportunity to make representations. The Tribunal also takes notes the where Notice of Hearing was sent out to a representative: that is covered by Rule 61(4) of the Employment Tribunal Rules 2004, namely that the Claimant is deemed to have notice of this hearing."
[10]On behalf of the Appellant Miss Shepherd submitted that the Tribunal had not sent notice of the hearing fixed for 14 April to the Appellant not less than 14 days before that hearing date. Clearly the letter sent out to the Appellant herself on 11 April was outside the required time limit and she submitted that the original Notice of Hearing sent to Employment Dispute Consultants on 24 February was not sufficient since they were not authorised representatives as required under Rule 61(4). In particular she replied on the letter sent to the Respondent's solicitors on 28 January pointing out that they had not yet received formal instructions from the Appellant to act, the fact that the Respondent's solicitors had referred that letter to the Tribunal when they wrote to them on 31 January and the Tribunal's acknowledgement of that position in their letter of 4 February in which they indicated that they "will continue to communicate with the Appellant direct". She submitted that Employment Dispute Consultants had made it clear at all times that they were not authorised representatives and therefore any purported service upon them would be ineffective.[11]She referred us to the Court of Appeal Decision in Miss Beata Kyamanywa v London Borough of Hackney [2003] EWCA Civ 902 in which one of the issues was whether a notice had been sent to solicitors as the authorised representative of the Appellant. In that case complications have arisen because the Appellant had occasionally used the services of a firm of solicitors Balogun Kirban but at other time she had acted in person at the hearing and also when communicating with the Tribunal. The Court of Appeal approved the Tribunal's decision that notice had been sent to the solicitors as authorised representatives and at paragraph 30 Mummery LJ set up the position thus:
"30. In my judgment there was no error of law in the decision of the review tribunal regarding non-receipt of notice. On that point I agree with the submissions made by Miss Maclaren on behalf of the council. It is clear, reading the extended reasons of the review tribunal, that they made findings of fact on that point without any error of law. The applicant accepted in her evidence to them that she had instructed Balogun Kirvan to act on her behalf throughout. They had instructed counsel to appear in the tribunal on her behalf at an earlier hearing; they had corresponded with the tribunal as her solicitors; and the tribunal had corresponded with them and sent notices and documents to them. The evidence adduced on behalf of the applicant did not establish that either the applicant or Balogun Kirvan had even given any notice to the tribunal under regulation 20(4), indicating that the tribunal should now send notices and documents to her personally rather than to the firm of solicitors who had started to act for her."
Miss Shepherd sought to distinguish the manner in which Balogun Kirvan had acted in the Kyamanywa case, to the situation in this case where the Employment Dispute Consultants, she contended had made it clear at all times that they were not authorised representatives.[12]On behalf of the Respondents Miss Wetherfield argued that the letter sent by Employment Dispute Consultants to the Tribunal on 28 January contained no ambiguity or reservations about their position and she referred to the 5 occasions in the letter where they had used the expression "our client". She also referred me to Rule 11(4) which provides that "(4) When a party is legally represented in relation to the application (except where the application is for a witness order described in rule 10(2)(c) only), that party or the representative must, at the same time as the application is sent to the Employment Tribunal Office, provide all other parties with the following information in writing –(a) details of the application and the reasons why it is sought;(b) notification that any objection to the application must be sent to the Employment Tribunal Office within 7 days of receiving the application, or before the date of the hearing (whichever date is the earlier);(c) that any objection to the application must be copied to both the Employment Tribunal Office and all other parties; and the party or his representative must confirm in writing to the Employment Tribunal Office that this rule has been complied with." She argued that Rule 11(4) imposed an obligation on a party who has legally represented to provide certain information to other parties in connection with an application and she reminded me that in the letter of 28 January the consultants had expressly referred to their compliance with Rule 11. She also reminded me that the time the Tribunal sent out their Notice of Hearing on 24 February they had still not received clarification from the consultants as to their exact position. Such information had been requested on 4 February. She argued therefore that the Tribunal were entitled to assume that at the time they made their application on 28 January they were authorised representatives on behalf of the Appellant and had done nothing prior to the 24 February when the Notice of Hearing was sent out to alter that position in relation to the Tribunal. She argued that whatever reservation may have been expressed in the letter of 28 January to the Respondents' solicitors it was not sufficient to displace the inference that was to be drawn from the application that they were making it as authorised representatives on behalf of the Appellant.[13]I agree with Miss Wetherfield's submissions and with the view taken by the Tribunal. The only sensible reading of the letter of 28 January sent to the Tribunal making the applications Employment Dispute Consultants were acting for the Appellant certainly for the purposes of making this application. I find that the use of the words "our client" on 5 occasions to be particularly significant. I am therefore quite satisfied that the Tribunal were correct to find that Notice in accordance with the Rules had been given to the Appellant through her authorised representative. Was there a valid Unless Order?[14]Miss Shepherd criticised the eventual Order that was sent out on 21 January. Firstly under the heading "Unless Order", the text refers to "the Order or Orders set out above" whereas in fact the Order was set out below in a schedule. Secondly, in addition to an Unless Order there is the standard paragraph referring to consequences of non compliance referring to possibility of Orders for Costs or a pre-hearing review for purposes of a strike out. Whilst I accept that the inclusion of the paragraph "Consequence of non compliance" was unnecessary for this form of Order, I am quite satisfied that the Appellant understood this Order which is why she consulted Employment Dispute Consultants and instructed them to make the application that they did. In any event there was no direct strike out as a result of this Order because of the applications that were made. I am quite satisfied that it was open to the Chairman on 14 April, if satisfied that is was appropriate to, a make a strike out Order. The Application to revoke or vary[15]Miss Shepherd contended that, even in the absence of the Appellant, the pre hearing review had been required to consider the applications made on her behalf on 28 January. She argued before me that the Tribunal erred in law in failing to consider the material set out in that application and that in particular the Chairman's alleged failure to deal with the matters raised in that application. In particular she criticised a passage in paragraph 20 of the Tribunal's Decision where the Chairman said this:
"The Claimant has clearly failed to comply with the order of the Tribunal, has failed to provide any reasons for her failure to do so and has not made any attempt to present any case of the Tribunal today."
[16]In response Miss Wetherfield took me to paragraphs 14 to 17 of the Decision:
"14 The Respondent, by its solicitor Ms Weatherfield, made detailed submissions, answering the case which was put forward in EDC's letter of 28 January 2005. One argument put forward by EDC is that the Claimant was willing to disclose names, subject to a pre-condition that the Respondent was not to impugn the credibility of the witnesses and in exchange for that concession the Claimant would disclose the names. Clearly that is not an order that the Tribunal could make. Such an order would hamper the Respondent's ability to cross examine its witnesses and would be contrary to the interests of justice. 15 Further, the Respondent contends that it would not be onerous for the Claimant to require her to disclose whether there were witnesses to the events which she had described. As the Respondent rightly says, only she knows whether there were any witnesses and there can be no problem for any witness in having their name put to a statement. Clearly each witness would be protected by the victimisation provisions of the relevant discrimination legislation were the Claimant's concerns to be realised. 16 The Tribunal took account of the Respondent's submission relating to the overriding objective which is to secure the interests of justice for both parties. The Tribunal notes the chronology and the delays that have taken place in this case. There is no excuse offered by the Claimant for any further delay in providing these particulars. Her letter of 13 April 2005 gives no account of why she could not have complied earlier, nor does she give and explanation as to why she has not appeared today. 17 The Tribunal accepts the Respondent's submission that the Claimant was put on actual notice of this hearing and has been given the opportunity to make representations. The Tribunal also takes notes that where Notice of Hearing was sent out to a representative: that is covered by Rule 61(4) of the Employment Tribunal Rules 2004, namely that the Claimant is deemed to have notice of this hearing."
She argued that although those paragraphs were headed "Respondent's submissions" they in fact also dealt with a number of the matters which were put forward in the Consultants' letter of 28 January and came to conclusions about them. For example in paragraph 14 they dealt with the suggestion put forward by the Consultants that the Appellant was willing to disclose names subject to a pre condition that the Respondents were not to impugn in the credibility of those witnesses and concluded that this was not an Order that a Tribunal could make. Similarly in paragraph 15 the Tribunal agreed with the Respondent's submissions that it would not be onerous for the Appellant to require her to disclose whether there were witnesses to the events. Those 2 findings dealt with the 2 major submissions made by the Consultants under the heading "Revocation of Order" in their letter.[17]Again I am satisfied that notwithstanding Miss Shah's absence the Chairman clearly had in mind the matters contained in the letter of 28 January and dealt with them. Strike-Out[18]As a final submission Miss Shepherd argued that the Tribunal in considering whether to strike out for non compliance of the Order failed to take into account the overriding objective and to carry out the proper balancing exercise in respect of all the circumstances of the case. She referred us to an EAT Decision Weir Valves & Controls (UK) Ltd v Harmitage [2004] ICR 371 where this Court emphasised that in considering whether or not to strike out or impose some lesser remedy the guiding consideration was the overriding objective which required justice to be done between the parties and that in particular the Tribunal should consider the magnitude of the default, whether the default was the responsibility of the solicitor or the party, what disruption, unfairness or prejudice had been caused and whether a fair hearing was still possible. She argued that Appellant's default was not serious particularly as compared with the substantial amount of particulars that had already been provided by her and that bearing in mind the factors set out by the Appellant giving rise to her failure to comply with the Order and the substantial nature of her case already pleaded an appropriate sanction will be simply to give her one further opportunity to provide the details.[19]The Tribunal's conclusions on this matter were set out in paragraphs 18 – 22 as follows:
"Conclusions 18 The Claimant has failed to give any reasonable explanation for not attending the hearing listed for today. A chronology of events shows that the Claimant had had ample opportunity to provide the information to be set out in the further and better particulars of the further and better particulars. 19 The Respondent has hitherto complied with all aspects of Tribunal procedure, is unable to prepare its case nor to evaluate its prospects of success or otherwise without knowing whether any of the alleged acts were witnessed, nor by whom. 20 The Claimant has clearly failed to comply with order of the Tribunal, has failed to provide any reasons for her failure to do so and has not made any attempt to present any case to the Tribunal today. 21 The order providing for today's pre-hearing review was, in effect, a courtesy to the Claimant, giving her a chance to set her house in order. It goes beyond that which is required by the "unless" order. The Tribunal notes that this case could have been struck out under Rule13(2) without the Claimant having been given the benefit of this hearing. The Claimant has failed to take advantage of the opportunity offered to her by the Tribunal to attend today. 22 Under the circumstances, it would be unjust to the Respondent for the Claimant's claim to proceed. The Originating Application is therefore struck out by reason of the Claimant's failure to comply with the Orders of 8 December 2004 and 21 January 2005."
[20]I have already referred above to paragraph 16 of the Tribunal's Decision where they referred to overriding objective and also they noted that notwithstanding the short personal notice to the Appellant she had still not given account of why she did not comply earlier with the Order nor give an explanation as to why she was unable to attend the hearing.[21]Miss Shepherd further argued that there was considerably more prejudice caused to the Appellant in not having the opportunity to have her complaints for discrimination investigated on their merits and there was to the Respondent in there being a delay in their knowing which of the Appellant's alleged incidents had been witnessed. A further short delay she argued would not prevent there being a fair hearing in the case.[22]In response Miss Wetherfield argued that the Tribunal both in paragraph 16 of their Decision and in their conclusions clearly carried out the relevant balancing exercise bearing in mind the overriding objective which they had specifically mentioned. She drew my attention to the fact that application letter from the Appellant's representatives did not seek to submit that striking out was too draconian an order nor had it been raised by the Appellant herself in her original Notice of Appeal. She submitted that the Appellant's default was a serious one and that the Respondents were unable to carry on without knowing the identity of the witnesses. She pointed out that even by the time of the hearing on 14 April no information concerning the identity of the witnesses had yet been provided.[23]It is not for me to say whether I would have come to the same decision as the Tribunal but I cannot fault the reasoning process of the Chairman who clearly in my view exercised her discretion properly. She had fully set out the history of the case and noted the continuing default on the part of the Appellant for what the Chairman considered to be reasonable excuses. The necessity for the identity of the witnesses to be disclosed had been stressed in previous hearings to the Appellant and she had not sought to appeal the earlier order when she was directed to supply the additional further and better particulars. To my mind this was very serious default on the part of Miss Shah compounded by her failure to provide any real excuse as to why she could not attend on the 14 th . Accordingly I see no reason to interfere with the Chairman's Decision.

order

"AMENDED ORDER 19 TH January 2005-09-16 I acknowledge receipt of the Respondent's representative's letter dated 11 th January 2005. (Copy enclosed for the attention of the Claimant). A Chairman of the Tribunals, Ms J Laider has made the following Orders on his or her own initiative, and under Rule 12(2) the party affected by the Order may apply to have it varied or revoked. Such an application must be made before the time at which, or the expiry of the period within which, the Order is to be complied with. The application must be made in writing to this office and include reasons for the application. A party who is legally represented is required by Rule 11(4) to provide all other parties with the information in writing set out in that rule. UNLESS ORDER: the Chairman has Ordered, under Rule 13(2) that unless the Order or Orders set out above are complied with, the claim shall be struck out on the date of non compliance without further consideration of the proceedings or the need to give notice under Rule 19 or hold a pre-hearing review of Hearing. CONSEQUENCES OF NON COMPLIANCE Failure to comply with Orders made under the Rules and set out in this letter may result in a Chairman or Tribunal making an Order in respect of costs of preparation under Rules 38-46; or, subject to notice under Rule 19, at a pre-hearing review or at a Hearing, making an Order to strike out the whole or part of the claim. (a) Failure to comply with an Order for inspection, or discovery may result on summary conviction in a fine of up to £1,000 being imposed upon a party on default under Section 7(4) of the Employment Tribunal Act 1996. SCHEDULE Comply with the order at the Case Management Discussion on 8 th December 2004 namely: To provide the Tribunal and the Respondents with Further and Better Particulars of the Further and Better Particulars served 8 July 2004 setting out in relation to each and every allegation whether or not it is her case that the incident relied upon was witnessed and if so by whom. Please comply with order on or before 28 th January 2005."

Cited in 1 later judgment