NSM MUSIC LTD v MR J H LEEFE [2005] UKEAT 0663_05_1412

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0663_05_1412

Case No Appeal No. UKEAT/0663/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

NSM MUSIC LTDAPPELLANT

MR J H LEEFERESPONDENT

Before

Mr Justice Burton

Date 14 December 2005

[1]APPEARANCES For the Appellant MR SEAN HALE (of Counsel) Instructed by: SFS Legal Ltd The Orchard Naseby Road Leicester LE4 9FH For the Respondent MR STEPHEN LENNARD (of Counsel) Instructed by: Stefanie O'Bryan Solicitors 20 Shirburn Street Watlington Oxfordshire OX49 5BT SUMMARY Practice & Procedure: Appearance/Response, Review & Appellate Jurisdiction/Burns-Barke When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons from the ET for the purpose of an application for review, but not for any other purpose (and, consequently, at least pending any legislative change to Rule 9, a request for such Reasons intended solely for the purpose of considering an appeal can only be achieved by asking the EAT to exercise its powers under Rule 30(3)(b)). Because of the draconian effect of a Rule 9 order, a Tribunal must be aware of disproportionate consequences, for example the effect on a Respondent of being debarred from resisting quantum as well as liability. In any event, review opportunities at the EAT (by reference to Pendragon where appropriate) should be taken up. Doubted whether there is power to order or lay down a condition that an undisputed sum be paid over by an appellant. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of a somewhat unusual appeal by the Appellant, NSM Music Ltd against a decision (to which I will refer) of the Employment Tribunal at Reading. The Employment Tribunal at Reading is seised of a claim by the Claimant, Mr Leefe, for unfair dismissal by the Respondent, NSM Music Ltd.

[2]Judgment has been given in favour of the Claimant for a sum of £48,962.48, in a short note of judgment sent to the parties on 22 September 2005. The decision against which the Appellant primarily wants to appeal (although with a view to appealing that judgment, if so advised), is the decision to refuse the request for reasons for that judgment, sought by the Appellant by letter dated 10 October 2005. The old system, in the days of Summary Reasons and Extended Reasons, whereby an appeal would be brought before the Employment Appeal Tribunal against the Employment Tribunal's refusal of Extended Reasons had, one would have liked to have thought, long died. It is clearly an inappropriate use of Court time to have interlocutory appeals against refusal of reasons, when what we are all concerned with is the substantive judgments and, of course, enforcement of the substantive remedies.

[3]I shall explain the circumstances in which this appeal arises in a moment, but I would pause to consider the context in which this matter is being considered. There is, it seems to me, a real problem in the present system in the Employment Tribunal constituted by the new Rules, the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2004 Schedule 1, with regard to the consequences of the failure to put in a timeous Notice of Response by a respondent. Such consequences are considered under the present Rules in two separate rules. Rule 8 is headed up "Default Judgments" and by Rule 8.1, it is provided: "8. (1) In any proceedings if the relevant time limit for presenting a response has passed, a chairman may, in the circumstances listed in paragraph (2), issue a default judgment to determine the claim without a hearing if he considers it appropriate to do so" and the subsequent subparagraphs then set out the various circumstances in which this can arise, and various miscellaneous provisions relating to the imposition of such judgment. In particular by 8.5 there is a provision that the claimant or respondent may apply to have the default judgment reviewed in accordance with Rule 33.

[4]It is apparent that this entry of a default judgment is within the discretion of the Tribunal. It is not a course which the Tribunal is required to take, and it is one which may be unwelcome not only to the respondent but also to the claimant in such circumstances, hence the opportunity for the claimant also to apply to have such a judgment reviewed.

[5]There is then a parallel provision under Rule 9 which is headed up "Taking No Further Part in the Proceedings". It is Rule 9 which forms the substance of consideration before me today and it provides as follows:

"9. A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to - (a) make an application under rule 33 (review of default judgments); (b) make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(a) and (b) or (e); (c) be called as a witness by another person; or (d) be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37" and then there is the following provision: "and in these rules the word 'party' or 'respondent' includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes"

. The latter provision is intended obviously to impose the limitations of Rule 9 upon any reference elsewhere in the Rule to what a respondent is otherwise entitled to do.

[6]It is quite plain, then, that if there is a default judgment, there is an express power of review, and considerations can then be given as to the remedies that should be imposed by a Tribunal or, in the case of a hearing of a review, retained in respect of such default as there has been by a respondent. In Bolch v Chipman

[2004] IRLR 140

, the Employment Appeal Tribunal considered the consequences, not in that case of a default judgment under the then equivalent of Rule 8, of a decision to strike out a Notice of Appearance under what was then Rule 15(2)(d): and we considered in that case the consequences which ought to flow and/or could flow, and we required an employment tribunal, among other things, to consider the proportionality of what it was doing. We pointed out that if a fair trial were not possible on liability, there could still be an order simply debarring the respondent from taking any further part on liability, but permitting that respondent to take part on the question of compensation.

[7]Where a default judgment is not entered, there may be no occasion for such considerations of proportionality, because, as Mr Stephen Lennard of Counsel (who has argued the matter most ably on behalf of the Respondent to this appeal, the Claimant below) has pointed out, the terms of Rule 9 are very limited. But that does not mean that a tribunal is not all the more required to take very great care in relation to the consequences of its decision not, in a given case, to enter a default judgment but simply to use the much greater bludgeon of an instrument of a consequential order under Rule 9. If, as here, the effect of not entering a default judgment with its appropriate considerations either on an original decision or on a review, but of taking the course of a Rule 9 decision, is that the respondent is debarred, whatever the nature or quality of its default, from contesting both liability and remedy or quantum of compensation, it is all the more important for an employment tribunal carefully to consider the position in the light of such orders it has made in protecting, so far as is proportionate, the position of a debarred respondent.

[8]The facts here are that there was a claim issued by the Claimant on 26 April, which was sent by the Tribunal to the Respondent on 29 April 2005. The time for the lodgment of a response by a respondent is 28 days from the date when the claim form is sent to the respondent by the Tribunal (see Rule 4(1)). 28 days from the 29 April expired on 27 May. There is no explanation given by the Respondent as to why it, or its solicitors, waited until the very end of that 28-day period to put in what, in fact when lodged, was a relatively substantial response to the claim. It contained an assertion that there was no unfair dismissal because there was a genuine redundancy, and it put forward a case as to why a consultation exercise in the instant case was inappropriate and that there were no alternative positions available.

[9]Had that ET3 been served in time, there would have been no doubt that that issue would have been joined between the parties. In fact, the ET3 did not arrive at the Employment Tribunal by the time of expiry of the 28 days on 27 May. In a statement supplied to the Employment Appeal Tribunal, an explanation is given by Mr Sacranie of the Respondent's solicitors that the ET3 was posted by his firm on 26 May under cover of a letter, which he produces, of that date. An explanation is given that there must have been delay at the local sorting office, and it is unclear to me at the moment whether that meant that the letter of 26 May, posted, according to Mr Sacranie, on 26 May, never arrived at all, or whether it had simply not yet arrived by the time of 1 June, when he enquired of the Employment Tribunal in Reading whether they were going to acknowledge receipt of the response - to be told that it had not been received - and in such circumstances he sent a further copy of the response by fax on that day. That, at any rate, was the earliest date upon which the Employment Tribunal had received the ET3 and it was the date, namely 1 June, which was taken by the Employment Tribunal as being the date of receipt, namely some three or four days outside the required time.

[10]However, if it was indeed the fact that the letter was posted on 26 May (and Mr Lennard accepts that he is not in a position to challenge Mr Sacranie's statement) - albeit that we do not have the date stamped envelope provided by anyone - then, if it had happened to have arrived by good fortune on 27 May, it would have been in time. But it did not and, as a result of the deemed posting rule (which the employment tribunals follow in compliance with the decision of the Court of Appeal in Consignia v Sealy

[2002] IRLR 624

), a document is deemed to have been received by the Employment Tribunal in the ordinary course of post 48 hours after posting. That would not benefit the Claimant in this case because the deemed lodgment on 28 May would still be a day out of time.

[11]A day, however, is not a lengthy period, albeit it renders the Respondent in default. Even three to four days is not certainly evidence of contumelious default. The Employment Tribunal, having rejected the response by a letter of 7 June, indicated in that letter that there was a decision by Mrs Hill, as Chairman, that under Rule 4(1) the response had not been presented in the statutory time limit, and therefore could not be accepted, and that the Respondent could take no part in these proceedings. The Respondent made a review application simply on the basis of giving the explanation, to which I have referred, about the response originally being sent by first class post on 26 May and there being problems in the Leicester sorting office. That review application was refused, without any consideration of the merits of the ET3, by a letter dated 13 June 2005 from the Employment Tribunal.

[12]The Tribunal was not expressly invited by the Respondent on the application to review (to which I have referred) to consider the merits nor, it seems, did it do so of its own motion. On 13 June there would not have been available to either the Respondent nor the Employment Tribunal the decision of this Appeal Tribunal in Pendragon plc v Copus

[2005] ICR 1671

, which makes it clear that the previous authority of Kwik Save Stores Ltd v Swain

[1997] ICR 49

l under the old Rules still applies under the new, namely that the absence of a good reason for a response not being entered in time is not, itself, determinative, but that other matters require to be considered by a Tribunal in the exercise of its discretion, including the merits of the defence set against the prejudice to the Claimant and the length of any delay.

[13]It appears to me, without in any way seeking to determine the matter, that there would, at the very least, have been a very strong arguable case for a successful review by the Respondent in the circumstances of this case. However, there was no such consideration by the Tribunal and the Respondent did not appeal against the order refusing the review. Plainly in future that would be the sensible course for a respondent. The effect of the Chairman's decision under paragraph 9, to which I have referred, as unreviewed and unappealed, was thus to have the draconian impact to which I referred at the outset of this judgment, namely that not only was the Respondent debarred from contesting liability at any hearing, but also remedy.

[14]A Schedule of Loss was served by the Claimant on 4 August 2005 putting his claim at £36,038.14. That became, as I have indicated, in the judgment which was entered at the hearing which took place on 18 August, some 25% higher, namely £48,962.48. Unknown to the Respondent, until it was recently provided by the Claimant's advisers in the course of this appeal, there had been an amended Schedule of Loss which had increased the £36,000 figure to some £46,000, albeit still not the £48,000 for which judgment was entered.

[15]The Respondent received the judgment entered on 18 August by a document sent to the parties on 22 September 2005. That was a simple setting out of the judgment of the Tribunal that the Claimant was unfairly dismissed and that the Respondent was ordered to pay the sum which I have indicated, by way of a combination of a basic award of nil (because it had been already cancelled out by the redundancy payment previously paid) and the balance, being the compensatory award. No reasons were given in that judgment. There is no requirement for reasons to be given in writing unless they are requested in accordance with the Rules; and so although Mr Hale, who has appeared today for the Respondent and argued the matter ably before me, originally asserted that the judgment was in some way defective by virtue of its absence of reasons, he has accepted that is not a supportable proposition. Rule 30(1) of the Rules provides that a tribunal or chairman must give reasons, either oral or written, for any judgment or order if a request for reasons is made before or at the hearing at which the order is made. In relation to subparagraph (1), under subparagraph (3) it is provided that written reasons will only be provided in relation to judgments if requested by one of the parties within the time limit set out in subparagraph (5). That is subparagraph (30)(3)(a) of the Rules. There is also a significant subparagraph (b) to which I shall return.

[16]The note of judgment, which was sent on 22 September, ended with what I assume is the standard rubric at the end of every judgment issued by the Employment Tribunal, as follows: "Any application for review of this judgment or any request for written reasons for this judgment must be made within 14 days of this date". 14 days is the time limit set out by Rule 30(5), to which I have referred.

[17]There was no qualification or caveat on that rubric in this case, relating to the inability of the Respondent, who was supplied with a copy of this judgment, to ask for either a review or, in particular, for written reasons: and the Respondent, by its solicitors, asked, just within the 14 day time limit, on 5 October 2005, for the written reasons, in a very short letter which read as follows: "Further to this matter and judgment which was served on all parties on 22 September 2005, please let us have the written reasons of the Chairman".

[18]Notwithstanding the rubric on the judgment and the compliance by the Respondent with the time limit set down in that rubric, the Tribunal responded by letter dated 10 October 2005 as follows:

"A Chairman, Mr M D Ross, has directed that your request on behalf of the respondent for written reasons is refused. The respondent's response to the claim was not accepted and therefore, in accordance with Rule 9 of the 2004 Rules of Procedure, the respondent was not entitled to take any part in the proceedings. Taking part includes requesting written reasons"

. It is that refusal which has formed the major basis of the appeal to this Employment Appeal Tribunal. In the Notice of Appeal, the Respondent describes the position in paragraphs 3 and 4 as being an appeal from that decision of 10 October and in paragraph 4 expresses a wish to appeal against the substantive judgment of Mr Ross given on 22 September.

[19]By subparagraph (d) of paragraph 7 of the Notice of Appeal, the Appellant says this:

"The Appellant wishes to protect its position in relation to an appeal from the judgment given on 22 September in so far as it relates to the quantification of compensation. The Appellant contends that the award of £48,962.48 is excessive. The decision to make this award may be perverse, inconsistent with the evidence and/or wrong in law. The Appellant cannot further particularise this ground of appeal further unless and until full reasons are received from the Employment Tribunal"

. That, of course, is not suggested to be an adequate way of appealing against the judgment of 22 September, but it is all that the Appellant can do at the moment. It is noteworthy that, at present, it is clearly indicated as being an appeal, or an intended or a hoped for appeal, in respect of quantum only. Mr Hale has explained that that is all, at the moment, the Respondent feels it is likely to be able to challenge, but if reasons were provided which indicate a wholly flawed basis upon which the Tribunal has found unfair dismissal proved, even in the absence of the Respondent (which appears to be an extremely far-fetched possibility) then the Respondent would wish to seek to leave out of time to amend its Notice of Appeal in that regard. Leaving aside that remote possibility, the signalled intention is simply to have the information, missing at the moment, by way of reasons in order to see whether there is an arguable appeal against the compensation ordered.

[20]The letter of 5 October, to which I have referred, which sought the reasons, did not say why they were required, and that is unfortunate. It appears to me that it would have been sensible for the Employment Tribunal to have written back, as an Employment Appeal Tribunal very often does in relation to a request for a transcript of an oral judgment, to enquire why the reasons were sought; and it may well be that, at that stage, clarification would have been given by the Respondent as to the purpose of the reasons, either for a review or for an appeal. But the Employment Tribunal did not do so and the letter remains in the form it was.

[21]Mr Lennard, not surprisingly, criticises the Respondent for its unexplained failure to appeal the original review decision to debar the Respondents, whether on the basis of debarring them from defending liability or, indeed from taking any further step in the proceedings. But it is clear that that will or would be an extremely powerful argument if it ever came about that the Respondent was seeking to question or re-open liability, and there is, at any rate, before me no application out of time to pursue any such argument. But the fact that the Respondent has not been able to challenge quantum either is a plain concern so far as this Appeal Tribunal is concerned, when one sets it against the impact of, for example, Bolch v Chipman , whereby it can be assumed that even in relation to very serious, possibly contumelious, defaults, and where a fair trial is no longer possible, employment tribunals are still encouraged to consider the proportionality of the consequences of their judgment.

[22]It is to be hoped that in the future, if this occurs, a Tribunal will consider very carefully whether to go down the route of Rule 9 rather than a Rule 8 default judgment, bearing in mind these possible consequences and, if the Rule 9 route has been adopted, will take extra care to consider the consequences to the Respondent and, for example, to take the course I have suggested in relation to a request for reasons.

[23]However, I can see no basis upon which the decision by the Tribunal in this case that a request for reasons simpliciter in the letter of 5 October was outside Rule 9 can be challenged. It may be that, on any rule revision, consideration should be given as to whether a request for reasons should be included as a specific exception to any rule relating to debarring proceedings and there may also need to be more careful consideration as to whether it is really appropriate to have two apparently entirely separate procedures at the option of the Tribunal.

[24]But on the assumption that the Rules are not changed and in relation to the present Rules, I would take this opportunity to give the following guidance. First, if there is a request for reasons by a Respondent in a case such as this which, hopefully, in future, will positively indicate that those reasons are required for the purposes of consideration of the making of a review application under Rule 9(b), or as stimulated by a letter by the Tribunal raising such a question, then I am satisfied that a request for reasons of such a kind, with a view to the making of an application under Rule 35 brings such a request within the ambit of Rule 9(b) even as presently drafted. Mr Lennard, in his helpful submissions, conceded (and, if he had not conceded, in any event I would have found that it must be) that once there is an exception for a Respondent who has not presented a response to have the opportunity of making an application under Rule 35 for review of a judgment which has been entered into in his absence, after he had been debarred, then that would allow for and subsume the making of a preparatory request for reasons for the purpose of making such an application for review.

[25]In furtherance of the overall objective in order to achieve fairness and in order to ensure proportionality in terms of the consequence of Orders (and, if necessary, by reference to Article 6) I would hold that a request for reasons with a view to the making of an application under Rule 35 would fall within Rule 9(b), and would be one of the exceptions, even on the present Rules, to a bar on a respondent taking any step.

[26]There was argument before me as to whether that could be taken further, and whether a request for reasons with a view to an appeal should also, in some way, find its way into a broad construction of Rule 9. I am satisfied that it cannot. As I have already indicated, it appears to me important that the amendment of Rule 9 to include such a provision should be seriously considered. However, as the Rules presently stand, a request for reasons, not with a view to consideration of an application for review, but with a view to the consideration of making an appeal to the Employment Appeal Tribunal (which, as Mr Hale has pointed out, a party can still do even though debarred, because the debarring applies only to steps in the Employment Tribunal and not in the Employment Appeal Tribunal (see Athos Origin IT Services UK Ltd v Haddock

[2005] ICR 277

) does not, in my judgment, fall within Rule 9. There is, however, the availability of the subparagraph 30(3)(b) to which I have earlier referred. This reads as follows: "(3) Subject to paragraph (1) Written reasons shall only be provided:-(a) ….

(b) in relation to any judgment or order if requested by the Employment Appeal Tribunal at any time".

[27]The Employment Appeal Tribunal, on its sift, now does make use of that Rule on a regular basis in situations where there are no reasons provided by a Tribunal, either because they have not been sought or because they have been sought and refused, in an appropriate case. The appropriate case is where it appears to the Employment Appeal Tribunal on the sift, or possibly on a Rule 3(10) application (if there has been a Rule 3(7) decision on the sift) that it may be that there might be something in the appeal. It is not a jurisdiction which the EAT would wish to exercise very often. It would be far more sensible if the Employment Tribunal had delivered the reasons and the Employment Appeal Tribunal were not left to speculate that there might be reasons. But the availability of that route in the absence of any other (unless and until the Rules are altered) is one which we continue to use in order to avoid and eliminate what I referred to earlier as the old, and discredited, system of appeals against refusals of reasons. The test will obviously have to be on a sift, as Mr Lennard has accepted, whether there could possibly be anything in the appeal if reasons were forthcoming.

[28]In this case, Rimer J, on the sift, concluded that he would not exercise the power to request reasons under Rule 30(3)(b) because of the particular context of this case, but that it was an appropriate case to refer through to a full appeal and be listed in front of the President, so that these matters (which have been ably argued by both sides in front of me) could be canvassed, and so that a decision could be reached in open court (which is now done), in order to seek to avoid such circumstances arising, namely appeals without reasons, unless such are really necessary. I am satisfied that, in this case, the much more sensible course would be either for the Respondent to have indicated the purpose for its request for Reasons or for the Tribunal to elicit it, and that had the issue of a review been raised, the reasons should and would then have been supplied. If, however, it had been said "we want these reasons for the purposes of an appeal", then I am satisfied, as I have previously indicated, that the only available course would have been for the Tribunal to say: "well, then you must put in your notice of appeal and if the Employment Appeal Tribunal thinks it right, they can request reasons under Rule 30(3)(b)".

[29]That is the course which I propose to take. Mr Lennard has sought, but not at length, to submit that there could not possibly be an appeal in this case. He, of course, is not in a position to put before this Appeal Tribunal the evidence which was before the Employment Tribunal, and which would, he submits, have explained both how the Tribunal's decision was arrived at and the difference between the original schedule and the eventual judgment. Without that, however, (although, of course, one respectfully expects that there must have been evidence before the Tribunal upon which it could reach the conclusion they did) this is a very substantial judgment and, in particular, Mr Hale has raised the issue as to whether an appropriate period has been taken by the Tribunal (one which was based upon relevant evidence), whether mitigation was considered, whether and on what basis there was evidence relating to the re-training costs which were recovered, and, in any event, how the sums claimed and ordered were arrived at: not, of course, for the purpose of revisiting evidence, but in order to see both that there was a legal route by which they could be achieved and that there was evidence before the Tribunal upon which it could make the decision it did. This is not a case in which I can say that there is not a possible appeal, albeit that inevitably, because it may well be what one would describe as a fact appeal, that once the reasons are forthcoming, this appeal may be ruled out under Rule 3(7).

[30]In those circumstances, I shall not conclude that the decision to refuse reasons was wrong, but I shall stay the appeal and request the Employment Tribunal to give its reasons. I should mention that Mr Lennard submitted that this appeal was ill-founded on another basis, namely that there was not adequate compliance with the Employment Appeal Tribunal Practice Direction, paragraph 16, which deals with the method by which appellants can bring forward an appeal to the Employment Appeal Tribunal where they did not present a response in time before the Employment Tribunal. I do not accept that Mr Lennard's arguments present a threshold ground for refusing this appeal for two reasons. First, at least as presently presented, this is not an appeal against liability, but only against quantum; and consequently, it is not the matters which are primarily contained in the ET1 and ET3 that are sought to be re-opened. Secondly, in any event, I am not persuaded that the statement by the solicitor, to which I have referred, which gives such explanation as can be given in relation to the lateness of the ET3 with the ET3 attached, in circumstances in which the ET3 is not a simple bald denial but gives a good deal of particularity in relation to the nature of what the employer's defence would have been, would not have complied, had this been an appeal on liability, with Paragraph 16.

[31]The appeal will therefore be stayed, and three issues arise and have been argued. The first is the time within which the Tribunal will be requested for its reasons and, although normally that would be 28 days, I propose to request the Tribunal to give its reasons within 35 to allow for the Christmas period. Secondly, the issue arises as to how quickly the Respondent must react to the supply of those reasons in order either to make good its appeal by particularisation of the appeal on quantum or to abandon its Notice of Appeal entirely; and that period of time, sought on the one side as 42 days and on the other as 7, will be 21 days.

[32]The matter that remains finally arose out of the fact that there is a judgment for £48,000, and an appeal, subject only to remote possibilities (which I rule out of mind for the moment for reasons which I have given), only in respect of quantum. Mr Lennard submits that in relation to a judgment given in August and notified in September, and against the background of failure to appeal the original review, and now an appeal only limited to compensation, his client should not be kept out of his money any longer.

[33]Proceedings have been issued in the County Court on 11 October 2005 by way of an application to enforce the award, and permission was given on that date to enforce, although no steps have yet been taken by way of enforcement. The Employment Appeal Tribunal and the employment tribunals have no method of enforcement: that is done by the local County Court. Mr Lennard has submitted that I have the power, and ought to exercise it, to order the Respondent to pay that sum or, at any rate, some proportion of it either directly to his client or solicitors or into some kind of secure account, there being no equivalent in the Employment Tribunal system to a payment into Court system. He accepts that there is no express power in the Employment Appeal Tribunal to make any such order, but he submits that that should be a condition of the stay of the appeal which I have ordered. No doubt, in another case, it would be suggested (for example on a Rule 3(10) application) or a preliminary hearing, that there could be a similar order as a condition of an appeal going forward at all. He would derive such power for the Employment Appeal Tribunal by reference either to the Overall Objective, which is preserved and expressed in our Rules, or by reference to Rule 25 of the Employment Appeal Tribunal Rules which reads as follows:

" The Appeal Tribunal may, either of its own motion or on application, at any stage of the proceedings, give any party directions as to any steps to be taken by him in relation to the proceedings" or by reference to Rule 39(2): "39 (1)….. (2) The Tribunal may, if it considers that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interests of justice, dispense with the taking of any step required or authorised by these Rules , or may direct that any such steps be taken in some manner other than that prescribed by these Rules"

. It is clear that the latter Rule cannot possibly apply in this case, because it is a power to create an alternative to some other provision, and there is no provision to which I would be putting forward an alternative. But on its face, Rule 25 is a wide rule and it relates to "steps to be taken in relation to proceedings", and Mr Lennard submits that to make an order for lodgment of a sum, or payment over of a sum, would be steps in relation to the proceedings.

[34]I am unpersuaded that the Employment Appeal Tribunal has, or ought to have, such power. The Employment Appeal Tribunal Rules have emerged as a result of detailed consultation, and they depend upon the consent and acquiescence of all sides of industry and all in the field of employment. It is a delicate balance to preserve a system which differs in a number of ways from that of the High Court.

[35]In the recent Rules, the Employment Tribunal Rules have reiterated and strengthened the powers of an employment tribunal to order, for example, the provision of security by claimants whose claims are seen to be weak. No similar provision was contained in the recent amendment of the Employment Appeal Tribunal Rules. I am satisfied that the order for the making of conditions for an appeal could lead to an entirely new path of assessment by an Employment Appeal Tribunal of the merits of cases, and thereby place a hedge or a fetter on the bringing of appeals before the Employment Appeal Tribunal which the legislation does not intend. It does not appear to me that that is covered by the requirement of the directions with regard to "steps to be taken in relation to the proceedings" which, in my judgment, relate to the method of operating the proceedings, as opposed to the imposition of conditions entitling a party to be allowed to take any such steps.

[36]I note, and am grateful to Mr Lennard for producing it from the Times Law Report judgment of 30 October 1990, that in a case called Zabaxe Ltd v Nicklin and Others , a similar application appears to have been made to Wood P, as he then was, in which the head note says: "It was open to a successful applicant before an industrial tribunal whose award was the subject of an appeal to go to the county court where the sum awarded could be paid into court and interest could accrue pending the appeal" and Wood P said that that was, indeed, a course open to an applicant. It is, of course, open to the Claimant here, not only to do that, but positively to enforce the order that he already has in the County Court, and at that stage, the County Court would be told, as is the case, that the appeal in the Employment Appeal Tribunal is one limited to quantum, and does not impugn the entirety of the award.

[37]However, as a result of discussion before the Court and instructions taken outside it, Mr Hale has been able to obtain instructions from his clients that a sum of £18,000 would be paid over direct to the Claimant's solicitors, and that will be enshrined in an agreement between the parties, which will result in an appropriate stay of the enforcement proceedings in the County Court. That is a very sensible course, and one which does not require me to make any decision as to the existence of such a similar jurisdiction in the Employment Appeal Tribunal. No doubt there will be many cases in which such a situation arises, and once again, it may be a matter for consideration of a change of rule if a similar order is to be considered or made by an Employment Appeal Tribunal in a future case.

[38]With gratitude to both parties, therefore, I dismiss this appeal against the refusal of the reasons, but I stay the appeal against the judgment of 22 September for the period to allow the reasons to be requested and obtained from the Employment Tribunal; these papers will be restored in any event for further consideration if there has not been any previous order by consent or otherwise by 2 February.