Enamejewa v British Gas Trading Ltd & Anor (Practice and Procedure: Striking-out/dismissal) [2015] UKEAT 0347_14_1704

EAT

Enamejewa v British Gas Trading Ltd & Anor (Practice and Procedure: Striking-out/dismissal)

[2015] UKEAT 0347_14_1704 · 2015-04-17

[14]“The clarification brought about by Neary is welcome. The law in this area had become undesirably technical and involved. It had also, I might note in passing, caused considerable concern in Scotland, where the CPR has of course no application. The law as it now stands is much more straightforward. The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.”18. Accordingly, in my judgment, Rule 38(2) of the 2013 Rules is to be read in the sense that I have indicated. A Judge, of course, is addressing the procedural question, whether or not the order should be set aside on the basis that it is in the interests of justice to do so. The order is the unless order. But, in addressing and determining that question, the Employment Judge is required to have in mind, if it is just to do so, factors which have occurred subsequent to the making of the order as well as those which occurred before it was made. Such factors will include those identified by Underhill J in Thind in paragraph 14 of his Judgment.

19. It is necessary for me to determine whether or not Judge Lewzey applied that approach to the decision which she made. Had her reasoning stopped at paragraph 27, I would have had no hesitation in determining that she did apply that approach and in upholding her decision. Although it is true that nowhere in the Decision does she state that the delay was of short length and that by itself, but for the existence of the unless order, it would not have prejudiced the employers and would not have prevented the hearing from taking place on 4-10 December. It was quite unnecessary for her to state those things. It was obvious that the delay was short. She said as much when she said that the witness statements had been served at 12.08, eight minutes after the deadline. It was obvious that, but for the existence of the unless order, no prejudice was caused to the employers. It was obvious that, but for the existence of the order, the trial could have proceeded notwithstanding the eight-minute delay. The omission to state such obvious factors does not, in my judgment, vitiate her reasoning.

20. But her reasoning did not stop at that point. It went on, in paragraph 28, to address what she understood to be the determinative question, whether or not it was wrong for the unless order to have been made. That at least is one reading of her words. It may not be that which she intended but, given the emphasis that she placed, in contradistinction to what she understood the Claimant to want, namely an order setting aside the unconditional Judgment striking out his claim, it is possible that she did misdirect herself and so drew her attention away from the issues upon which she was required by the case-law, in particular paragraph 14 of Thind , to focus on.

21. I, of course, accept that Judgments of Employment Judges must not be scrutinised with a view to finding error but to be construed in the round and making reasonable allowances for infelicity of language. I readily accept Simler J’s observation in Redhead v London Borough of Hounslow

UKEAT/0086/13/LA

, at 46: “… The tribunal was not required to adopt a particular form of words or mantra, so long as it was possible to see that the tribunal asked itself whether in the circumstances, the sanction was a just one. …”

22. It is only because I cannot for certain tell whether Judge Lewzey would have reached the same conclusion had she approached the matter in the way that I have indicated that she should, that I cannot uphold her Decision.

23. There is ample material upon which it could be upheld. For example her reasoning in paragraph 25 demonstrates that the Claimant’s failure to serve his witness statement in time was the last straw in the longish list of breaches of the duty to act reasonably even if not in accordance with the letter of orders hitherto.

24. It was a significant and serious breach, in the language adopted by the Court of Appeal in Denton v TH White Ltd

[2014] 1 WLR 3926

, notwithstanding that it was a delay of only eight minutes, which would not, but for the unless order, have made the trial of the claim more difficult. Because of the existence of the unless order it had the effect of automatically vacating the hearing date and so putting the innocent party, the employers, to significant and unnecessary expense and difficulty.

25. If Judge Lewzey had decided that, notwithstanding that the delay was short and could have been put right by an order of the Tribunal made with the co-operation of both sides, nevertheless it was necessary to uphold the unless order, then her reasoning would have been unimpeachable. It is only because I am not certain that, had she approached the issue in the manner that I have indicated, she would have reached that decision that I am compelled to set aside her order.

26. It has not been suggested that if I do I should retake the decision, nor would I consider that to be an appropriate course. There are difficulties for this Tribunal, having identified an error of law in the reasoning of the Employment Judge, in substituting its own view unless certain that view was the only one which could reasonably have been arrived at or which was the one which the Employment Judge would have arrived at if the correct test had been applied. Accordingly, it seems to me that there is no reasonable alternative but to remit the decision to Employment Judge Lewzey for her to retake it in the light of the approach to the law which I have set out in this Judgment and I so order.

27. I order that this matter is remitted to Judge Lewzey to reconsider. I do so, notwithstanding Mr Kendall’s submission that I should remit it to another Judge to consider afresh. My reasons for doing so are, first, Judge Lewzey has already had the conduct of this matter and has produced a detailed and careful and reasoned Judgment in support of the decision appealed. I have indicated in my Judgment that her reasoning up until paragraph 28 of her Decision is unimpeachable and need not be revisited. In those circumstances it seems to me that it would be a waste of effort and judicial time to require another Judge to start afresh. Although I acknowledge that Judge Lewzey will not, of course, have a complete recollection of this case one year later, she will nonetheless be in a better position than would a Judge who had no prior knowledge of the case to read up and retake the decision which I have remitted.

28. Mr Kendall also submits that the Claimant may not have confidence in Judge Lewzey’s decision if she is required to retake it. This raises both a question of principle and the factual background to the appeal which I have determined. As originally drafted the grounds of appeal made extensive allegations of racism, fascism, hooliganistic conduct and, to put it at language of a lower temperature, unjudicial conduct on the part of Judge Lewzey and Judge Pearl but in particular on the part of Judge Lewzey. If it were to be thought that, by making allegations of that kind, which have been dismissed as unfounded, a litigant could influence the choice of Judge who was to determine his claim, then it would be open to unreasonable and unscrupulous litigants in effect to select the Judge that they thought most likely to be favourable to their cause. That is something which, as a matter of principle, must not be allowed. If there had been anything in the allegations made by the Claimant against Judge Lewzey, then it would be a different matter. But there is not. In those circumstances there is not only reason why Judge Lewzey should not be invited to redetermine the application, there is every reason why she should be rather than any Judge. For those reasons this application will be redetermined by Judge Lewzey unless for some reason she is unable to do so.

29. I also remit consideration of whether or not to make a costs order against the Claimant to Judge Lewzey for her to decide in the light of her conclusion about the remitted substantive issue. She will be perfectly able to reach the same decision about costs even if she were to decide that the unless order should be revoked for the reasons that she explained in her Costs Judgment, but if she were to revoke the unless order that would be a factor that she did not have in mind when she made her original costs order. Accordingly, although it might well make no difference, I cannot say for certain that it would make no difference and, as I am remitting the substantive order to her in any event, it will cause no additional cost or inconvenience if I also remit the costs order to her as well and I so order.