MR S COOPER T/A S & J TRANSPORT v MR D GREEN [2009] UKEAT 1261_08_1103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 1261_08_1103Case No Appeal No. UKEATPA/1261/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S COOPER T/A S & J TRANSPORTAPPELLANTMR D GREENRESPONDENT
Before
His Honour Judge McMullenDate 11 March 2009
[1]APPEARANCES For the Appellant MR N McCORMICK (Solicitor) 1a Church Steps Frome Somerset BA11 1PL For the Respondent MR N FOSTER (Solicitor) Messrs Dyne Drewett Solicitors 65 High Street SHEPTON MALLET Somerset BA4 5AH SUMMARY PRACTICE AND PROCEDURE: Time for appealing The Respondent who did not lodge a response in time was the subject of a default Judgment. He did not appear on his application for a Review. He did not appeal the substantive order against him. His appeal against a further review was four days out of time and on his acceptance that there was no excuse, there was no reason to extend time or to review the compensation and costs orders against him. Appeal dismissed with costs. HIS HONOUR JUDGE McMULLEN QC This is an appeal from the Decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant. I will refer to the parties as the Claimant and the Respondent, as at the Employment Tribunal. Introduction[2]The appeal itself is an appeal by the Respondent in those proceedings against a judgment of regional Employment Judge Tickle given on 5 September 2008 wherein he refused, as having no prospect of success, an application to review a judgment he had given on 8 August 2008. At the time the Respondent, albeit briefly, represented himself. The Claimant was represented at all relevant times by solicitors.[3]The Claimant claimed £3,191 by way of unpaid wages and holiday pay. The Respondent did not submit a response form and a judgment in default was given in that sum on 21 December 2007.[4]An application was made for a review of that judgment. The application was granted. I described in my judgment in Chowles v West EAT/0473/08 the procedure adopted in relation to reviews of default and other judgments, and reference should be made to it.[5]The review hearing was postponed because the parties were hoping to conciliate. They moved some way along that road with a draft compromise agreement but the talks broke down and the stay which had been placed upon the review was lifted.[6]By 15 July 2008 the solicitors acting for the Respondent came off the record. They did so shortly after receiving the notice of hearing which was set for 8 August 2008. The facts[7]The procedure for hearing appeals from a decision by the Registrar is set up in my judgment in Muschett v Hounslow [2009] ICR 424 and reference should be made to that. I notice that, in Jurkowska v Hlmad Ltd [2008] ICR 841 CA, Rimer LJ considers that applications for extensions of time ought better to be made to the Registrar by way of evidence.[8]I heard evidence from Mr Cooper, upon which he was cross-examined. His evidence was that, when the solicitors came off the record, he asked for an adjournment so that he could be legally represented. He wanted to produce new evidence. The Tribunal did not reply. He decided himself that he would not go. He felt he could not put his case across and it would be a losing battle. He knew nothing about Employment Tribunal procedures. The previous solicitors had quoted £3,000 for attending the review hearing. He then went to another firm of solicitors who agreed to act for him and said that he should apply for an adjournment.[9]The hearing went ahead without the Respondent there but with the Claimant represented by a solicitor. Judge Tickle refused to vary the default judgment and refused the application to review the decision not to accept the response. The Respondent was also ordered to pay costs of £4,744.06, since he conducted the proceedings vexatiously, abusively and unreasonably.[10]Mr Cooper told me that he had received this judgment, together with the judgment booklet, which is sent out by the Employment Tribunal. He did not read it carefully as he was running his business. He got in touch with the EAT on 8 September 2008 following an unsuccessful application for further review made to the Employment Tribunal on 1 September 2008. That resulted in a judgment, recorded in a letter dated 5 September 2008:
"Regional Employment Judge Tickle has considered your application and refused it because he considers that there is no reasonable prospect of the judgment being varied or revoked. The fax of the 31 July 2008 was on file, but no reply was sent. A postponement would have been refused. The respondent has had ample time to instruct solicitors – his previous solicitors only came off the record on the 15 July 2008. The judge considers that it was just another delaying tactic. The respondent was sent notice of the hearing and could have attended. The respondent did not indicate that he was not going to attend. The case was decided by the judge on the evidence presented and submissions made by solicitors who attended on behalf of the claimant. The respondent refers to new evidence but has not sent it to the tribunal so that it could have been considered. The claim was presented as long ago as 27 October 2007. The respondent's actions throughout display a lack of co-operation."
[11]Thus it was that Mr Cooper contacted the EAT where he was advised of a number of matters and he was sent the Practice Direction. He did not read it. In due course, he presented a Notice of Appeal but was told by a case manager in the EAT that the claim and response forms had to be provided. Over the course of the next few weeks he was in touch with his former solicitors and eventually got the forms. He took no step to contact the EAT to let the EAT know what steps he was taking.[12]The Notice of Appeal against the order of Judge Tickle dated 5 September 2008 was properly presented on 21 October 2008, four days out of time. The Registrar invited an application for an extension, with reasons. The application was rejected for reasons which she gave, having considered the circumstances in full and applied her mind to the relevant authorities which include Jurkowska and Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 . The appeal[13]The Claimant appeals against her refusal. This appeal is unusual for Mr McCormick, the solicitor now representing the Respondent, accepts that the Claimant does not have an explanation or a good excuse for filing the notice of appeal four days out of time. That is an unpromising start but he relies on a judgment of Burton J (President) in Moroak t/a Blake Envelopes v Cromie [2005] UKEAT/0093/05 which, according to the summary, says this:
"… there is power under Rule 34 where the interests of justice require to review the order made under Rule 6 not to accept a response served out of time and to direct it be accepted. The test for making such an order, as with Rule 4 and Rule 33, is what is just and equitable."
[14]The reference to Rule 33 is a review against a default judgment and Rule 34 is, as I explained in Chowles , about the more general powers of review. These latter, under Rule 34, are all regulated by access through the gateways provided by Rule 34 whereas Rule 33 is more generous.[15]The basis upon which this appeal to justice and equity is made is a document which the Respondent did not show to the judge. The Claimant's claim is that he was not paid from 4 July to 15 August. The Respondent produces a bank statement indicating payments made into his account on 4 and 20 July. This is said to be conclusive of the issue before me since I am entitled, in exceptional circumstances, to look at the merits of the underlying appeal; see what Sir Christopher Staughton said in Aziz .[16]Since there is nothing else upon which he could ground his appeal, I have been seduced into looking at the merits of this case in order to answer Mr McCormick's submission. In doing so, Mr Foster has retaliated in kind for he, too, has put before me some documents which indicate that the position was nothing like as clear-cut as the bank statement implies. It is to the effect that the Respondent's original case, in an unaccepted ET3 response and drafted by Mr Cooper himself, was that the Claimant left of his own free will and was not entitled to be paid.[17]In a further unaccepted response, this time drafted by his former solicitors, there is an assertion that he was paid and then, finally, there is an assertion that the Claimant was paid a sum of £2,7147.50 and yet it is said before me that the cheque was stopped, as to which there is no answer from Mr Cooper's side.[18]There is a further account of a cheque for £2,500, as to which there appears to be no evidence. So there are four different defences from Mr Cooper's side to the Claimant's claim. The simple explanation given by Mr Foster on behalf of his client is that the record of the bank statement indicates dates of payment in but does not indicate the dates upon which the Claimant worked. His claim remains, as it always was in his claim form, for £3,190; being about six weeks' pay and a week's holiday pay.[19]In those circumstances, I do not consider that this is such a convincing case as it is just and equitable to allow the extension of time sought. I know the judge has not given full reasons for the Decisions which he made but he has given some and he was not required to give more than the reasons he did, as the Respondent was out of time with his response form.[20]The Respondent did not turn up to the review which he had requested from the Employment Tribunal. I do not accept as a sensible reason that he could not put his case himself. Since it is, as he says, a very simple issue of producing a document, he could easily have done that himself without the assistance of a solicitor. In my judgment, he took an economic view of this, which was that since it was going to cost £3,000 to be represented by a solicitor, and he was at risk against the Claimant of £3,190, he would not bother to turn up. Had he done so, the result may have been different but he is not entitled to bring into the equation justice and equity when he has not taken the most elementary steps.[21]During the course of debate, it became apparent that Mr McCormick's principal case was that the judgment he sought to have set aside was that dated 8 August 2008 yet this is not the subject of an appeal. Mr McCormick says his client was in person; so he was. There was a period of time when he acted for himself but he had full access to an officer of the EAT who guided him on a couple of matters and who sent the Practice Direction to him. He had the judgment booklet from the Employment Tribunal. The injustice that Mr Cooper feels is that he has had monetary awards made against him without the opportunity to have his say but he did know he could appeal the judgment, dated 8 August 2008, and took no step to do so.[22]The appeal before me has constituted an appeal against the 5 September 2008 order. If I were to take a non-technical approach and say, at the heart of this, is an appeal against the order of 8 August 2008, then I would add to it the reasons given by the judge on 5 September; and I see no compelling reason in justice or equity to allow an appeal out of time against that order.[23]I was, of course, surprised by the order of the magnitude of the costs order here. There is no attack before me on the finding of vexatious, abusive and unreasonable conduct. I have been shown voluminous lever arch files in respect of the way in which this simple wages dispute has been carried on. It is plainly a disproportionate sum but it is not for me, at this stage, to say anything more about it. Mr Foster, representing the Claimant since he presented his claim, has obviously been put to a good deal of work and one has only to look at the way in which the previous solicitors of Mr Cooper reacted, that is, to foreshadow a bill of £3,000, to indicate the kind of money involved.[24]There being no explanation or good excuse nor any reason in justice and equity to allow an extension of time, the appeal from the Registrar's order is dismissed. Costs awarded; permission to appeal refused [reasons not transcribed].