THE ROYAL BANK OF SCOTLAND v MR J SOPER [2007] UKEAT 0080_07_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0080_07_0105Case No Appeal No. UKEAT/0080/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE ROYAL BANK OF SCOTLANDAPPELLANTMR J SOPERRESPONDENT
Before
Mrs Justice CoxDate 1 May 2007
[1]APPEARANCES For the Appellant MR ERIC GILLIGAN (Solicitor) Instructed by: Messrs. Brodies LLP Solicitors 15 Atholl Crescent Edinburgh EH3 8HA For the Respondent NEITHER PRESENT NOR REPRESENTED (DEBARRED) SUMMARY Practice and Procedure - Review Claimant's application for a Review of ET decision made late, but time extended and a Review granted on the papers of the Tribunal's earlier decision to strike out the claim for Claimant's failure actively to pursue it. No hearing held, despite a clear dispute on the evidence between the parties and the Tribunal's failure to consider the various matters in CPR3.9 in order to decide how to deal "justly" with the application. Appeal allowed. THE HONOURABLE MRS JUSTICE COX This is an appeal by the Respondent employers from a judgment of the Reading Employment Tribunal, the Chairman sitting alone, promulgated on 19 December 2006. In that decision, following an application by the Claimant for a review, the Chairman revoked his earlier judgment dated 16 August 2006, ordering the claim to be struck out because it had not been actively pursued; and reinstated the claim. The Respondent contends that he was wrong to do so and its appeal is listed for full hearing before me today, with Mr Gilligan representing the Respondent. The Claimant, however, has lodged no Answer to the appeal; and, after failing to respond to letters from the EAT dated 20 February and 8 March 2007, warning him as to the consequences, he was debarred from taking further part in this appeal by Order of the Registrar dated 11 April 2007.[2]The relevant facts are these. The Claimant was employed by the Respondent as a Senior Developer from 29 October 2001 until his dismissal on 18 August 2005. In his claim, lodged on 14 October 2005, the Claimant complained of unfair dismissal and unlawful discrimination contrary to the Disability Discrimination Act 1995 on the grounds of his depressive illness. The Respondent resisted the claims, and contended, amongst other things, that the Claimant was not disabled within the meaning of the legislation and that his Disability Discrimination Act complaints were out of time.[3]On 29 June 2006, at which time the Claimant was legally represented, a Case Management Discussion was held when the Chairman identified the issues and made various Orders. These included an order that a medical expert be jointly instructed by the parties to report on whether the Claimant was subject to a disability at the relevant time. The Claimant agreed to the release of his medical records for this purpose and the expert was to be identified and agreed by 14 July 2006. The parties were to agree a joint letter of instruction to the expert. A preliminary hearing was fixed to determine this issue on 29 September 2006; and further Orders were made as to disclosure, preparation of agreed bundles, exchange of witness statements, and service of the Claimant's schedule of loss.[4]It appears that the Claimant's solicitors withdrew shortly after the Case Management Discussion and were not replaced, so that the Claimant was from that time on acting in person.[5]By letter of 17 July 2006 the Respondent's solicitors wrote to the Tribunal stating that they had tried to agree a medical expert and a joint letter of instruction with the Claimant but had not received any response to their letters. Nor had they received a schedule of loss or any list of documents. Copies of the correspondence sent to the Claimant were enclosed.[6]By letter dated 24 July 2006, the Respondent's solicitors wrote again to the Tribunal stating that they had made every effort to comply with the Tribunal's Orders in terms of identifying a joint expert, but they had received no response whatsoever from the Claimant. They asked the Tribunal to consider striking out the claim under Rule 18(7)d, on the basis that the claim was not being actively pursued by the Claimant; and also under Rule 18(7)e on the basis of the Claimant's failure to comply with the Tribunal's Directions. A copy of this letter was sent to the Claimant.[7]By letter to the Claimant from the Tribunal dated 2 August 2006, the Claimant was told that the Chairman proposed to order that the claim be struck out because it had not been actively pursued and because the Claimant had failed to comply with the Case Management Order of 29 June. The Claimant was told that if he wished to show cause why such an order should not be made, he should do so in writing by 11 August 2006. If he did not do so, the Chairman proposed that the claim would be struck out without further notice. The Claimant did not respond to that letter and accordingly the claim was struck out by the Tribunal's judgment dated 16 August, the Claimant having failed actively to pursue the claim. Time for application for a review of that judgment expired on 29 August 2006.[8]By a letter dated 6 October 2006, and therefore more than a month out of time, the Claimant made an application for review of the decision to strike out his claim. He stated:
"I am aware this appeal is past the two week deadline, but I request you consider it. I have had another episode of depression during this time and was unable to contact yourselves. In the past few months I have also started working for a new employer. The recent depression episode started a few months after I started working for them. As the job came with medical insurance, I have used this to get a second opinion regarding my condition. This second opinion has changed my diagnosis from unipolar depression to bipolar disorder. During this recent episode of depression, my new employer felt that I was unable to work and they insisted that I spend some time in hospital to recover. I am currently in the Priory Hospital, Roehampton. I was admitted on 5 September and will be here for a further two to three weeks."
[9]The grounds of his application for review were firstly that he was unwell during the time that he should have been complying with the Case Management Order; and, secondly, that he had new medical evidence supporting his claim. In the Chairman's reply to the Claimant by letter of 17 October 2006, he required the Claimant to supply by 31 October a doctor's letter confirming the dates on which he had been in hospital during the period from 29 June to date; and further, written confirmation from his new employer as to when his new employment started. By letter dated 27 October the Claimant forwarded a letter from his new employers confirming that he had started with them on 12 June 2006. He also enclosed documentation from the Priory Hospital confirming that he was admitted as an inpatient on 5 September 2006 and discharged on 16 October 2006. He forwarded a copy of a report obtained from Dr Zamar, Consultant Psychiatrist, dated 31 August 2006, which set out a diagnosis of the Claimant's medical condition and a proposed plan of treatment. This, together with a further letter dated 23 October 2006 from Dr Zamar to the Claimant's GP, was forwarded to the Respondent's solicitors.[10]The Chairman does not refer in his Reasons to the Respondent's letters to the Tribunal of 27 October and 1 and 6 November 2006. In the letter of 27 October, they made it clear that they opposed the Claimant's application for a review on the basis both that it had been made too late and that there was no evidence that the Claimant was unable to comply with the Case Management Orders or to respond to any of their correspondence during July.[11]Having then seen the Claimant's letters, the Respondent's solicitors wrote again on 1 November 2006 making essentially the same points. On 6 November they wrote again this time providing detailed submissions in support of their contention that the review application was out of time and that it had no reasonable prospect of success. They stated in conclusion that:
"… the interests of justice do not require that the strike out decision be reviewed, that the decision should stand and further in the absence of any relevant evidence from the Claimant, there is no reasonable prospect of the Claimant's arguments succeeding in the event that the Tribunal decided to fix a hearing on the review application."
[12]No hearing was fixed. Further, the Chairman gave no indication to the parties that the review application would be determined on the papers before his decision of 19 December 2006 was sent to them. Mr Gilligan told me this morning that when it arrived it came very much as a surprise. The Chairman's conclusions were, firstly, that it was just and equitable in all the circumstances to extend time for applying for the review, although in paragraph 11, where he deals with this matter, he gave no reasons for this finding. Secondly, he held that the interests of justice required a review: and he therefore reinstated the claims. His reasons for so deciding appear at paragraph 12 and 13 of his reasons:
"12. It is clear on the basis of the medical information supplied by the claimant that he was admitted to hospital on 5 September 2006. He further states, and I have no reason to doubt this, that he was ill for a three week period prior to his hospital admittance, which means that his illness would have started on or around the 12 August 2006. However he has not produced any medical evidence that he was ill prior to that time and unable to deal with matters and respond to the correspondence sent to him by the respondent. He was clearly able to commence a new job on the 12 June 2006 and has not produced any evidence that he was not working prior to that date. He was able to obtain a second opinion regarding his condition with the benefit of medical insurance which was a benefit of his new job. That must have been arranged by him subsequent to the 12 June when he started his new employment. Although he appears able to have done that he has not given any explanation as to why he did not respond to the clear correspondence sent by the respondent's solicitors seeking to agree the identity of an expert by 14 July and a letter of instruction to that expert in accordance with the case management order of 29 June 2006. 13. However it does appear that the Tribunal's letter of the 2 August 2006 was sent to the claimant at about the time he fell ill again prior to his admission to hospital. In considering this application for review I have to balance the interests of the parties and in particular ensure that the provisions of the overriding objective are complied with and that cases are dealt with justly. Striking out a claim is a draconian step. The claimant's alleged disability appears factually and inextricably linked with the claim of unfair dismissal. Further the alleged disability does appear to be a direct factor in his failure to comply with the case management orders and the Tribunal's "show cause" letter in this case."
[13]In challenging this decision, Mr Gilligan relies on the following grounds of appeal. His first and main ground is that the Tribunal erred in granting the review application on the papers without holding a hearing in this case. Whilst accepting that there is no obligation upon a Tribunal always to hold a hearing in such cases, he submits that the rules provide for such a hearing to be held, and the particular facts and circumstances in this case meant that it was wrong to proceed to determine the matter on the papers.[14]I see considerable force in this submission. In circumstances where the Chairman was considering the Claimant's medical evidence, the nature and effect of which was clearly in dispute between the parties, the Respondent was denied the opportunity of testing that evidence and of presenting oral submissions to the Chairman as to the Claimant's delay in lodging his application; as to whether it was just and equitable in the circumstances to extend time, and as to the relevance of the Claimant's various periods of illness to his failure to reply to correspondence and to comply with the Case Management Orders. These were all relevant matters in determining whether the interests of justice merited a review. Having regard to the overriding objective, I agree that the Chairman erred in failing to fix a hearing to determine this Claimant's application for a review. In my judgment his decision to proceed on the papers fell outside the ambit of legitimate discretionary decision making in this case and this Appeal Tribunal is therefore entitled to interfere..[15]The Respondent's second ground of appeal is that the Chairman, in proceeding to determine the matter on the papers, failed to apply the correct legal principles in determining the review application. Mr Gilligan relies on Maresca v Motor Insurance Repair Research Centre [2004] 4 All ER 254, a decision of the EAT in February 2004. In that case, Rimer J. sitting alone, held that although CPR3.9 was not to be regarded as impliedly incorporated into the 2001 Rules the approach of an Employment Tribunal to the exercise of its jurisdiction to review a decision ought to be in line with the approach which the High Court and County Court would or should adopt in a like case. CPR3.9 spelled out how to deal justly with applications for relief from sanctions imposed for failure to comply with any rule, practice direction, or Court order. In dealing with a like application, an Employment Tribunal had to have regard to like considerations. Accordingly, in dealing with the application for a review, the Chairman ought to have regard to all the factors listed in CPR3.9.[16]In the present case, I agree with Mr Gilligan's submission that the Chairman seems to have focussed in paragraph 13 on the question whether this Claimant was unwell at the time that the Tribunal's "show cause" letter of 2 August 2006 was issued. In so doing, he was in error because he failed to direct himself as to the wider considerations required when exercising his powers of review. These included the interests of the administration of justice; whether the application for relief was made promptly; whether the failure to comply was intentional, and whether there is a good explanation for the failure; the extent to which the party in default has complied with other rules, practice directions and court orders; whether the failure to comply was caused by the party or his legal representative; whether the trial date or the likely date can be met if relief is granted; the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party. In particular, in the present case, it seems to me that the Chairman erred in failing to consider whether there was a good explanation for the Claimant's clear failure to comply with the Case Management Orders which had prompted the Tribunal's letter of 2 August 2006. In any event, the evidence before the Tribunal does not in my view support the finding at paragraph 13 that that letter was sent to this Claimant at about the time he fell ill again prior to his admission to hospital, or that the alleged disability appears to be a direct factor in his failure to comply with the Case Management Orders. Indeed, the Chairman's own findings in the previous paragraph, paragraph 12, do not support the conclusions he then arrived at in paragraph 13.[17]For all these reasons this appeal must be allowed. In my judgment the appropriate course is now to remit the case to a different Employment Tribunal for reconsideration of the Claimant's application for a review. In the circumstances, it would be preferable for this to be at a hearing at which the Respondent has the opportunity to be heard, both as to the lateness of the Claimant's application and as to its merits. No doubt, directions will be given below for that purpose in due course.