MS M C MILLER v LAMBETH PRIMARY CARE TRUST [2009] UKEAT 0181_09_1407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0181_09_1407Case No Appeal No. UKEAT/0181/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M C MILLERAPPELLANTLAMBETH PRIMARY CARE TRUSTRESPONDENT
Before
His Honour Judge McMullenDate 14 July 2009
[1]APPEARANCES For the Appellant MS M C MILLER (The Appellant in Person) MR D EVELINE (Mackenzie Friend of the Claimant) For the Respondent MS N MOTRAGHI (of Counsel) Instructed by: Messrs Capsticks Solicitors 77-83 Upper Richmond Road London SW15 2TT SUMMARY PRACTICE AND PROCEDURE: Review A review was ordered of a strike out for non pursuit of the claim. Notice was not given to the Claimant and she did not know of the review hearing where the strike out was affirmed. A further application for review of the review judgment was dismissed. Held: this was a cogent ground under Rule 34 and the review judgment was set aside and a rehearing ordered. HIS HONOUR JUDGE McMULLEN QC This case is about Employment Tribunal procedure when a party did not attend a hearing. I will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the judgment on an application for review held on 5 February 2009 registered with Reasons on 6 February 2009, Employment Judge Gumbiti-Zimuto sitting alone at London (South). I will call that the second hearing. It was in respect of an application for review of a strike out judgment given by Employment Judge Baron on 17 October 2008, the first hearing. The basis for the strike out was that the claim had not been actively pursued.[3]The Claimant received a copy of the judgment and sought a review of that by a detailed letter of 6 November 2008. A distinction is to be drawn between herself and her Representative at the time. Employment Judge Baron in due course ordered a hearing for a review. In other words he did not hold that it had no reasonable prospect of success and so a Notice of Hearing was sent convening the hearing before Employment Judge Gumbiti-Zimuto. The Claimant did not attend; the Respondent attended by solicitor. The judge conducted a review since it is within the powers of a Tribunal for a judge to review another judge, and came to the conclusion that the Baron judgment should be affirmed.[4]Following Employment Judge Gumbiti-Zimuto's judgment a further letter described as an application to re-review was sent by the Claimant on 20 February 2009. She gave a number of reasons, the primary reason being that she did not receive Notice of Hearing and did not attend. The judge by letter of 24 February 2009 refused to re-review the judgment on the grounds that there were no reasonable prospects.[5]That provoked a yet further application by the Claimant on 11 March 2009 which provoked a further response from the judge, who said that he did not consider that the request or application for review of his judgment made on review disclosed any matters which would have led him to take a different decision. He did not consider there was any prospect of a change.[6]In substance, the Claimant appeals against the strike out of her claim although the vehicle is an appeal against the second hearing and it might well include appeals against the earlier refusals. Taking a pragmatic approach to this, I will deal with this as a challenge to the strike out which was affirmed on a review. The appeal was considered on the papers by HHJ Peter Clark who directed a full hearing and today the Claimant has attended, assisted by her friend Mr Eveline who has addressed me, together with the Claimant. The Respondent has been represented by Ms Nadia Motraghi of Counsel. Both have presented skeleton arguments. The legislation[7]An Employment Tribunal has power to conduct a hearing in the absence of a party, see Rule 27(5). A Tribunal also has power to review a judgment, see Rule 34 and Rule 36. The power to review a judgment on a strike out as opposed to a default judgment is regulated by Rule 34 and so far as is relevant to this case, although other subrules have been cited, Rule 34(3)(b) and (c) are relevant, that is, a party did not receive notice of the proceedings and the decision was made in the absence of a party. The facts[8]The Claimant and the Respondent have a long history of antagonism. Prior to the instant proceedings, claims were brought by the Claimant of race discrimination, victimisation and disability in respect of events which took place between 2002 and 2004 which led to a hearing of six days. The Employment Tribunal dismissed the claims and on appeal at a preliminary hearing conducted by Underhill J with Members on 30 March 2007, the Claimant's appeal was dismissed.[9]Unusually at a preliminary hearing both parties were present. They were represented by Counsel, and the plea of Counsel for the Respondent that there should be finality in the litigation which had spanned a period from 2002 to 2004 and culminated in a Tribunal hearing in 2005 was plainly accepted by the Employment Appeal Tribunal.[10]The present proceedings have been the subject of difficulties in communication because the Claimant was at one stage represented by an organisation which, as Employment Judge Gumbiti-Zimuto said, called itself Community Law Project. The animateur of that project, Mr Nick Moss, disappeared and although certain communications from the Tribunal went through to the Claimant, crucially the Notice of Hearing where the review would take place did not. There has been no challenge to the Claimant's contention, and indeed her shock illustrated by an immediate response to the result shows that to be the case.[11]The Employment Tribunal cannot be faulted at certain stages for dealing with Community Law Project but in respect of a critical period which is from 17 October 2008 the view of

the Judge is important for he says this:

"20. I note also however that the claimant has never in terms informed the Employment Tribunal that she is no longer represented by Community Law Project and that correspondence should be addressed to her. However I do consider that since the 17 October 2008 the Employment Tribunal should have been communicating directly with the Claimant about her case rather than sending letters to the Community Law Project address. In this case this failing does not in my view justify a review of the judgment made."
[12]He then went on to hold that in the light of the history, the Claimant had not shown much interest or urgency in the prosecution of the case and criticised her for failing to contact the Tribunal since 6 November 2008 to inquire as to the outcome of her application for a review. The legal principles[13]I am mindful of the very high threshold which is set for a strike out of a claim. It is unusual to strike out a claim for lack of prosecution. The high-water mark is Abegaze v Shrewsbury College of Arts and Technology [2009] EWCA Civ 96 where the Court of Appeal overturned my judgment supporting a judgment of an Employment Judge in Shrewsbury who had struck out the Claimant's application for a remedy on race discrimination for it had not been pursued for some six years. Elias LJ indicated that less drastic measures could have been taken including an unless order. Thus I regard it as exceptional for a case to be struck out for lack of prosecution although the jurisdiction is undoubtedly there.[14]As to when a party does not appear, in Euro Hotels (Thornton Heath) Ltd v Alam [2009] UKEAT 0006/09 I set aside a judgment of an Employment Tribunal on the non-attendance of a representative of the Respondent. It is not as a matter of law a requirement that a tribunal make an enquiry to see where the party is but it is a feature to be considered on any review.[15]In my judgment, given the finding by the judge that communications should at the relevant time have been issued to the Claimant herself and none was issued in respect of the Notice of Hearing, it must follow that the grounds for a review were plainly there. She had no Notice of Hearing and she did not attend. Why should the judgment have been affirmed? The judge, too, was concerned about her non-attendance and said this:
"17. I have been concerned about the fact that the Claimant was not present today at this hearing. I considered whether I should adjourn the proceedings and have the matter re-listed and a new notice of hearing sent to the parties. I have decided against such a course of action for the following reasons. (a) Since the Claimant's letter of the 6 November 2008 the Claimant has not made any enquiry or effort to contact the Employment Tribunal to ascertain the outcome of her application for a review of the decision to strike out her claim. (b) I have also taken into account the fact that between the 16 July and the 17 October (just 4 days before the date set for the Hearing) the Claimant made no contact with the Employment Tribunal even though she states that she had failed, in the same period, to contact her solicitor. (c) I have concluded that it would not be in accordance with the overriding objective to adjourn the case further and put the Respondent to the further expense of attending again on a further occasion for a hearing to consider to [sic] the review application. In coming to this view I have in mind the history of the case before the Employment Tribunal and the history of the Respondent's internal proceedings as they have been relayed to me by Mr Andrew Rowland where the Claimant failed to attend appointments."
[16]I would be extremely reluctant to interfere with such a fact-sensitive exercise in discretion as this but it seems to me that the judge is wrongly taking account of the Claimant's inactivity in pursuing matters after 6 November 2008. This is inconsistent with the finding by the judge that it was for the Tribunal to communicate directly with her from that date. It is not right to criticise the Claimant for not taking any step herself.[17]That alone is a reason for allowing the application for a review and in my judgment the Employment Judge erred in going ahead with the hearing in the circumstances which obtained on the day. Again, I am reluctant to start the clock but justice calls out for a hearing - the simple message of the Claimant's skeleton argument is that she has been denied a hearing of the issue as to why she should not be struck out.[18]The only issue before me is the correctness of a judgment on review. Having held that the Employment Judge erred in failing to acknowledge that it was the duty of the Tribunal to notify the Claimant and it did not, this judgment must be set aside. The state of play is that the claim has been struck out and there is an extant application by the Claimant for a review which has been granted by the judge. All I need to do, therefore, having detected that error, is to direct that the review ordered by the judge now take place. Having heard observations, it will be remitted to any Employment Judge, according to the practical arrangements at Croydon. I will order that the parties report to the Employment Tribunal within 28 days on any steps taken through ACAS to try and resolve this issue.[19]I would very much like to thank Mr Eveline for assisting the Claimant who has understandable difficulties in communication in a formal setting such as this, and Ms Motraghi for her careful written and oral arguments.