MR A PLANK v ATKINS LTD [2010] UKEAT 0799_09_2001

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0799_09_2001

Case No Appeal No. UKEATPA/0799/09/JOJ

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A PLANKAPPELLANT

ATKINS LTDRESPONDENT

Before

His Honour Judge Peter Clark

Date 20 January 2010

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant SUMMARY PRACTICE AND PROCEDURE APPELLATE JURISDICTION Observations on hearing of a fresh Notice of Appeal in EAT R3(8). Requirement only for a second Notice; however(a) lodging a second Notice setting out the same or similar grounds to the original Notice is liable to be rejected as an abuse of process and

(b) only one fresh Notice under R3(8) is permitted. The Appellant was entitled to a R3(10) hearing following rejection of his second Notice under R3(8). The appeal was without merit. That R3(10) application was dismissed. HIS HONOUR JUDGE PETER CLARK Introduction This matter comes before me following a direction given by Underhill J, President, in a letter to the Appellant Mr Plank dated 16 October 2009 in these terms. "A hearing be fixed at which (a) you may seek to persuade the Tribunal that the Notice of Appeal submitted under cover of your letter of 17 August in fact constituted a fresh Notice of Appeal for the purpose of Rule 3(8) and (b) you may, if the Tribunal is so persuaded, advance submissions under Rule 3(10)."

[2]Mr Plank has not attended the hearing today. Ms Proops of Counsel has attended under the ELAAS pro bono scheme to provide free representation at his request. Mr Plank did not see fit to inform either the EAT or Ms Proops that he would not be attending. Attempts to contact him by telephone have been met with answer machines. In his absence she cannot represent him. In these circumstances, I shall determine the matter on the papers before me subject to this; although a hearing under 3(10) is an Appellant only hearing, the President gave no indication as to whether the first question raised in his letter of 16 October was to be determined on hearing the Appellant only or whether the Respondent would be given an opportunity to be heard. Mr Graham, the solicitor representing the Respondent, has attended today to observe the proceedings. I cannot hear him on the Rule 3(10) application, if it arose, but it seemed to me fair to give him an opportunity to comment on the first question. He has done so. Background

[3]By a Notice of Appeal (the first notice) lodged on 29 June 2009 the Appellant, the Claimant before the Bristol Employment Tribunal, appealed against certain directions given by Employment Judge Gill at a Case Management Discussion (CMD) held on 16 June. The Appellant in person and Mr Graham representing the Respondent, Atkins Ltd attended that CMD at the telephone. Essentially, the Judge directed that certain issues raised by the Respondent in their form ET3 be considered at a Pre-Hearing Review (PHR) which she listed for 13 August. The order listed four issues for determination at the PHR, namely(a) whether the claim or part of it should be struck out as res judicata or an abuse of process,

(b) whether the Tribunal has no jurisdiction as the claim or part of it is out of time,

(d) whether there should be a deposit order.

[4]Directions were also given for the Claimant to provide further information requested by the Respondent and for the Respondent to amend their response to enlarge on the limitation and the res judicata points taken in the original form ET3. The first notice was considered by the President on the paper sift. For reasons which he gave in a letter dated 22 July 2009 he applied a direction under EAT Rule 3(7) and that is a direction that no further action be taken on the appeal on the grounds that it had no reasonable prospect of success.

[5]Thereafter, the Appellant lodged a further Notice of Appeal dated 17 August (the second notice) which was again considered on paper by the President. On 10 September 2009, by letter, the President gave the following direction:

"The President has considered the Notice of Appeal submitted with your letter of 17 August 2009. The nine grounds of appeal set out at (a) - (h) (there are two (f)s) are substantially identical to those in your original Notice of Appeal, which you were informed by my letter of 20 July disclosed no reasonable ground of appeal. In those circumstances the Notice does not constitute a 'fresh' notice within the meaning of rule 3(8) of the Employment Appeal Tribunal Rules 1993, and to submit it on the basis that it does constitutes an abuse of the procedure of the Tribunal. The position accordingly remains, as per my earlier letter, that no further action will be taken on this appeal."

[6]By a letter of response, misdated 17 August, the Appellant made two points. Firstly, that the President ought to recuse himself and, secondly, challenging the President's view that the second notice did not constitute a fresh Notice of Appeal for the purposes of Rule 3(8) of the EAT Rules. The Appellant followed that letter with a further letter dated 6 October expressing his dissatisfaction with "the conduct of the Employment Appeal Tribunal President" and requiring that the matter be listed for a Rule 3(10) hearing. That caused the President to give his direction of 16 October with which I commenced this judgment. EAT Procedure

[7]It is convenient to refer to the relevant provisions of Rule 3 of the EAT Rules, as amended:

"(7) Where it appears to a judge or the Registrar that a Notice of Appeal ... (a) discloses no reasonable grounds for bringing the appeal; or (b) is an abuse of the Appeal Tribunal's process or is otherwise likely to obstruct the just disposal of proceedings, he shall notify the Appellant ... accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the Notice of Appeal ... (8) Where notification has been given under paragraph (7), the Appellant ... may serve a fresh Notice of Appeal ... within the time remaining under paragraph (3) or (6) or within 28 days from the date on which the notification given under paragraph (7) was sent to him, whichever is the longer period. (9) Where the Appellant ... serves a fresh Notice of Appeal or a fresh document under paragraph (8), a judge or the Registrar shall consider such fresh Notice of Appeal or document with regard to jurisdiction as though it were an original Notice of Appeal lodged pursuant to paragraphs (1) and (3) ... (10) Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, an Appellant ... expresses dissatisfaction in writing with the reasons given by the judge or Registrar for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the Notice of Appeal ..."

[8]The question posed by the President in his direction of 16 October is whether the second notice lodged in this case was a fresh Notice of Appeal within the meaning of Rule 3(8). In my view it was and Mr Graham does not argue to the contrary. It was a Notice of Appeal lodged on a second occasion in the same potential appeal. Although the grounds of appeal were in substantially the same form as the first notice grounds of appeal, I note that Rule 3(8) does not say that the Appellant may serve fresh grounds of appeal, which might give some utility to Rule 3(8), but simply a fresh Notice of Appeal. Strictly, the same wording could be used throughout, as in the first notice and it would still comply with Rule 3(8) although, as the President opined in the present case, that would amount to an abuse of process leading to its rejection under Rule 3(7)(b).

[9]If I may express my own view, Rule 3(8) is an unnecessary provision in the scheme of the rules. Having had an appeal rejected under Rule 3(7), an Appellant has an absolute right to a hearing under Rule 3(10) subject to the 28-day time limit mentioned in Rule 3(8). At or before that hearing he may amend his original grounds of appeal for the purpose of the Rule 3(10) hearing. Thus the opportunity to lodge a second Notice of Appeal seems to me pointless.

[10]Indeed, it is from time to time suggested by Appellants that there is no limit under the rules as to how many fresh notices may be served under Rule 3(8). For myself, apart from the abuse point taken here by the President, I read Rule 3(8) as allowing for only one fresh Notice of Appeal. The singular does not, in my view, include the plural in this context as a matter of interpretation.

[11]I would also add that, in my opinion, since Rule 3(9) deems the fresh notice to be an original Notice of Appeal under the rules, then the Rule 3(7) procedure applies so that, following rejection under Rule 3(8), the Appellant still has a right to an oral hearing under Rule 3(10) following application made within 28 days of the Rule 3(8) letter.

[12]Returning to the present case, I consider the true procedural position to be as follows. The first notice was rejected by the President under Rule 3(7) on 22 July 2009. The Appellant did then lodge a fresh notice under Rule 3(8) by the second notice dated 17 August. That fresh notice was rejected by the President as an abuse of process under Rule 3(7)(b) on 10 September 2009. The Appellant then made a timeous application on 6 October for a Rule 3(10) hearing. That is the hearing now before me. Rule 3(10) Application

[13]I have earlier set out the scope of Employment Judge Gill's CMD directions. I agree with the President that the appeal is wholly misconceived. All that the Judge was doing was(a) putting the pleadings in order and

(b) identifying issues to be resolved at a PHR. The questions as to whether the Claimant brings his claim in time or is seeking to re-litigate matters already determined between these parties in earlier proceedings are properly to be resolved by the Employment Tribunal, preferably at a PHR before putting both parties to the inconvenience and expense of a full merits hearing, should that ultimately prove to be unnecessary. These are routine case management orders well within the wide discretion afforded to Employment Judges. Nothing in either Notice of Appeal or in the Appellant's skeleton argument persuades me that any arguable point of law is raised. The application under Rule 3(10) is dismissed and, with it, the underlying appeal.