Hylton v Royal Mail Group Ltd (Practice and Procedure) [2015] UKEAT 0369_14_2402
EAT
Hylton v Royal Mail Group Ltd (Practice and Procedure)
[2015] UKEAT 0369_14_2402 · 2015-02-24
[2]“2. It is a critical aspect of fairness that a party knows the case it has to meet. It is also a central tenet of justice that disputes should be heard where a fair hearing is possible and cases should not lightly be ruled out on a procedural technicality without determination on the merits. These two principles may seen on occasion to be in conflict, as where a case is struck out for the failure of one party to state its case sufficiently to allow the other to answer it, but in truth they are capable of reconciliation by exercising case management powers to facilitate a hearing which is fair for both parties by ensuring that each knows sufficiently what case it has to meet. ”15. Referring to Blockbuster v James Mr Khalid observed that this was not a case in which there had been a deliberate and contumelious disregard of the orders of the court. He argued that the Judge had paid no sufficient regard to that which Dr Uduku had said. The reference in his letter of 16 April could lend itself to misunderstanding, but what he submitted must have been meant and should have been understood was that the side effects of medication and the Claimant’s state of health would account for her lack of action (that was his interpretation of the words “poverty of action”).16. The power should have been exercised in the same way as it would be in the High Court by regard to cases such as Denton vTH White Ltd [2014] EWCA Civ 906 in which (see paragraph 41) in any case where the failure of the relevant party could be seen to be neither serious nor significant, where a good reason was demonstrated or where it was otherwise obvious that relief from sanctions was appropriate, there should be relief from sanctions, and indeed the parties should agree that that should be the case.17. If the Tribunal had adopted the practice of the Tribunal, to which reference is made in the case of Riley v Crown Prosecution Service [2013] EWCA Civ 951 , it could have asked further questions of Dr Uduku to establish a proper evidential basis for the Judge’s conclusion that there was a risk that there might not be another effective hearing because of the sudden late panic of the Claimant. Then there would have been a more substantial medical basis upon which to rest his conclusion that there was a real risk that such a hearing might, in the circumstances, never take place.18. Those submissions reflect the Grounds of Appeal set out in the form of a Skeleton Argument attached to the Notice of Appeal in which it is argued that the Judge failed to ask whether or not a fair trial was possible, made a significant finding when there was no evidence at all (that is, as to the risk that the Claimant might be unable to attend again), had taken insufficient account of the medical evidence, which he argued gave no support for the Judge’s views and, in particular, was misunderstood where it referred to poverty of action, and had failed to consider a lesser sanction. It might, for instance, have considered whether it should award the costs of one of the adjourned hearings to the Claimant, and took account of irrelevant matters.19. In response Mr Peacock wished to argue that the Claimant’s previous track record in respect of an earlier claim to which the Judge made reference was relevant. I observed early in the hearing that that might have been of considerable assistance had I been in the position of making a decision in this case for myself at first instance. However, the issue on appeal is not what the Judge might have had regard to but what he did take regard of. Here, his only reference to the previous proceedings was that in paragraph 23, to say that they had been brought and concluded. Since it seems to have played no part in his reasoning, I do not see why I need consider that part of Mr Peacock’s Skeleton Argument further.20. He does, however, argue that on each of the matters to which the Claimant refers there is a proper and adequate response. The matter was one of discretion, and the Judge was entitled to come to the conclusion he did. Discussion21. The purpose of case management orders is in general to secure, where that remains possible, that there should be a fair hearing of the allegations made by one party against the other. Where accusations have been made on a very generalised basis, as here, clarity of the accusation is needed. The Respondent is entitled to know what acts it is being accused of, and the Tribunal cannot adjudicate properly unless that is the case. Unless and until that is done, it is difficult if not impossible to have a fair trial. As observed in Johnson v Oldham , parties are entitled to know the case against them.22. It must usually be the case that, where a claim has been struck out because of a failure to provide such information but by the time of an application for relief the information has been supplied, a court will grant relief. The purpose of the orders would have been achieved. Again, as observed in Johnson , the approach should be facilitative rather than penal. That cannot, however, apply where there has been no compliance even at the stage of seeking relief from the order which was made. Orders are made to be observed. As was said by Underhill J (as he was) in the case of Thind v Salvesen Logistics Ltd [2010] UKEAT/0487/09, every case turns on its own facts, and it should not be thought to be usual that relief will be granted from the effect of an unless order (paragraph 36):[36]“… Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible. …”23. In dealing with the arguments by Mr Khalid, it seems to me the Judge did have regard to the possibility of a fair hearing taking place. At the end of paragraph 25 he noted that without a Preliminary Hearing (that is, to clarify and understand what the Claimant was actually complaining of) “an efficient and proportionate hearing is unlikely to be capable of taking place.” Though he does not use the words “fair” and “trial”, that is plainly what he had in consideration.24. As to the assertion that the Claimant’s behaviour was not deliberate, the Judge did not say in terms that it was. But nor did he say that it was not. He noted in the body of his Decision that the medical evidence did not include any medical evidence to support her assertion that the medication she was taking affected her ability to comply with the order made on 25 February (see paragraph 19) except for the one sentence in the letter from Dr Uduku to which I have already referred. In his conclusions he did not rely particularly upon those save to say (paragraph 24, second paragraph) that the medical evidence presented was unsatisfactory. That was in the context not of explaining the absence of the particulars, though I think a fair reading of the Judgment suggests the Judge thought little of it, and it had been pointed out to him by Mr Peacock for the Respondent that the Claimant had been able to adhere to other directions, that there was no obvious explanation why she should be fit to be at work between 10 and 24 February, and still failed to comply, and that the letter which she wrote on 27 February was a model of fluency, coherence and it was constructive. He was concerned more with whether or not a Preliminary Hearing might not take place. This being an application for relief from sanction, it was for the Claimant to satisfy him of that which it was necessary to show that it was the interests of justice that her claim proceed. The reference to Riley and the suggestion that the Tribunal itself should have written to the doctor misses the point that, in an application such as this, it was really for the Claimant to set before the Tribunal clear evidence as to why she had not complied thus far and clear evidence that there was a real chance that she would be fit enough to attend the hearing and would not, because of the understandable effects of her condition, suffer panic attacks as the hearing became immediately imminent.25. The argument about proportionality shaded into arguments about the balance of prejudice. I note that the latter is a factor to which Underhill J had regard in Thind . Here Mr Peacock argued that the Judge had to have in mind the effects of unspecific but serious claims made in strong terms against those who remained work colleagues of the Claimant. What is proportional to one party’s case cannot be disproportionate to the effects on another.26. In that context I am disposed to accept his argument that the concept of proportionality includes a consideration, where appropriate, of the effect on others. The Judge did make reference to proportionality (see paragraph 25). He did not do so in terms, however, of seeing whether a lesser sanction might be appropriate.27. The only suggestion made to me as to what a lesser sanction might have been was either a case management order along the lines envisaged in Johnson or in some way remedying the disadvantage of the Respondent by a suitable award of costs in respect of the postponements. Neither, it seems to me, could have fitted the bill here since the whole thrust of what the Judge had to say in his conclusions was looking to see if a sufficient clarification of the claim to enable it to proceed could sensibly be expected.28. I do not accept that the Judge misunderstood that which Dr Uduku said. There is no indication in his conclusions that he did so. Accordingly none of the grounds as presented is in itself a ground for showing that the Judge failed to direct himself appropriately in accordance with the law. He did not set the law out save to make reference to the rule. He did not have to, provided that the Judgment contained sufficient indication that he had the relevant principles in mind. I cannot identify any error of law in his reasoning. It follows that, whatever my own decision might personally have been, his decision must stand, and despite the best efforts of Mr Khalid this appeal must be and is dismissed.