Appeal No. EAT/19/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J C RAMSAY

	MR S M SPRINGER MBE

BERKSHIRE ACCIDENT CENTRE	APPELLANTS

MR K H RUFFLER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants	MR P D OSTRIDGE
(REPRESENTATIVE)
Berkshire Accident
Centre
Unit 8
127A Reading Road
Wokingham
Berks RG11 1HD

	

	JUDGE HULL QC:  This is an appeal to us.  Mr Ostridge appears for Berkshire Accident Centre.  He was in partnership with Mr Pepper.  They did not unfortunately see eye to eye.  Indeed he has told us they are not on speaking terms.  They were engaged in vehicle repairs and they employed the applicant, as he was before the Industrial Tribunal, Mr Ruffler, a gentleman now aged 28, as a panel beater.  His employment began in September 1989 and ended on 7 September when he went on holiday.  There was a letter dismissing him instantly.

	He complained to the Industrial Tribunal that he had been unfairly dismissed.  His complaint is at page 13 of our papers and the Industrial Tribunal, having received that complaint, sent the letter (form IT.2) on 25 November 1992 (page 17 of our papers).  It told the employers:  you must enter an appearance by 16 December 1992 otherwise you cannot be heard.  In fact the employers, and Mr Ostridge admits this was entirely their fault, did not take action concerning that letter as they should have done; they did not enter an appearance; they did not write to the Tribunal; they did nothing.  They were going through a difficult time Mr Ostridge tells us.

	The Tribunal itself then sent a reminder (page 18) on 21 December 1992.  They said: You have not entered an appearance.  You can still apply.  If you will send an appearance now it will be considered as an application to extend time for entering an appearance.  There was no response to that letter.  Then there is a document which is referred to in the decision of the Tribunal, a letter which was sent on 11 January 1993 saying: the hearing will be on 13 May; and again nothing was done about that.  In other words the employers seem to have simply regarded other matters as much more important than dealing with this Tribunal hearing for which their ex-employee, Mr Ruffler, was applying.

	Very shortly before 13 May there was apparently a visit by Mr Ostridge to the Tribunal office.  He cannot remember exactly what was said but the general effect was that if a Notice of Appearance was brought to the hearing then the Tribunal would hear a representative of the employers.  A representative did attend (arriving late) and the Tribunal simply invited him to sit there as a member of the public.  Of course he was entitled to sit there.  They decided that the applicant had been dismissed unfairly and they awarded compensation of £10,000.  They would have awarded more if it had not been for the statutory limit, but they made a basic award on top of that.  They had reached their conclusion after hearing the evidence which was put before them by Mr Ruffler, the applicant.

	The employers then proceeded to take action.  A solicitor's letter was sent.  There was an application for time to be extended and an application for a review (pages 19 and 22).  Their appearance sets out what their case would be.  There were at least 5 occasions, they said, when there were serious pieces of bad workmanship by Mr Ruffler.  They set out chapter and verse.  All this, of course should have been put in months and months before, back in November or December.  So there it was.  There was a defence set out on paper and in addition they said the claim for compensation was to say the least of it exaggerated; in fact what had happened was that Mr Ruffler had been moonlighting and earning sums after the termination of his employment, so that his claim for a compensatory payment was exaggerated.

	The Tribunal appears to have taken that very seriously indeed.  They heard the matter.  They heard the application for a review on 26 August (page 7) and they set out the result of the application to review in their decision (page 7 onwards).  It was sent to the parties on 29 September.  They heard evidence from Mr Ostridge.  They heard evidence from Mr Pepper.  In many respects they say that that evidence was vague and unsatisfactory.  The employers had admitted receiving notification of the claim and they said how they came to overlook it.  Mr Ostridge told us that when he saw the female clerk at the Reading office shortly before the hearing, she was helpful.  She said words to the effect that it was not the end of the world and that he could come along on the day.  They also record the contention of the employers that false information had been given.  They say as follows:

		"14	 The Chairman and the members of the Tribunal on 13th May had no knowledge of any attempt to file a Notice of Appearance by the Respondent.  In those circumstances, the position was explained to Mr Pepper.  No mention was made by Mr Pepper at the time of any previous visit to the Tribunal Office either by himself or his partner...

		15   It is the usual custom in the Tribunal Office when an applicant or respondent or their representatives make any communication with the office for a note to be placed on the file.  We would have thought that this would be particularly so when somebody came along looking for advice in the way which Mr Ostridge had described.  There is no file note to indicate a visit.  Of course the Tribunal accept that mistakes can be made and the absence of a file note is not necessarily fully conclusive.

		16   Nonetheless on the Respondent's own evidence, no attempt was made to file a Notice of Appearance or even to file or discuss a partially completed Notice, when Mr Ostridge visited the Reading office."

	They turn to the question of compensation.  They say they heard further evidence from Mr Ruffler himself.  They say he was vigorously cross-examined.  He continued to assert his case.  They found that he was suffering from considerable misfortune.

	With regard to the application for a review they said they had been referred to St Mungo Trust v Collcano.  We have looked at that decision.  It is quite plain that the burden on a party who comes along after a hearing and says that he has overlooked filing an appearance and now wishes the entire matter re-opened and asks for re-trial is a heavy one.  That case makes it plain.  Of course if there has been some misfortune and the Tribunal is satisfied that a party has not received notice of the hearing, that is completely different.  In those circumstances a Tribunal might very readily conclude that the interests of justice demanded, although it was an unfortunate thing, that there should be a re-hearing, that it was absolutely demanded by the fact that the employers had not had proper notice of the hearing, but here it was absolutely the contrary.  The employers had had at least 3 notifications of the hearing; there was the original application sent with accompanying letter, the reminder letter after they failed to put in appearance and then there was the notice of the hearing date itself.  In those circumstances it was, as the Tribunal said, a heavy burden which lay on the employers.

	There is a very very ancient saying dating back to classical Roman times - translated it means that it is in the interest of the State, it is in the interest of the public that litigation should come to a conclusion.  It is a great evil if cases are relitigated and extra expense incurred and that is especially applicable today, when courts and tribunals are almost overwhelmed with work.  As we have said on authority, a heavy burden lies on a party who wishes in the circumstances of this case to persuade a Tribunal to hold a review and to order a new hearing.  This Tribunal heard the evidence of both the applicants, Mr Ostridge and his partner and it also heard the evidence of Mr Ruffler concerning the allegations which were made.  It was a matter of discretion for the Tribunal whether they would grant the application.  An appeal can only lie, against a decision which is discretionary, if we are satisfied either that it was a wholly irrational exercise of discretion, that is to say an exercise of discretion which no Tribunal could, properly directing itself, rationally arrive at, or if it is quite clear that the Tribunal has acted on the basis of some mistaken view of the facts  or law so that they directed themselves incorrectly in exercising their discretion.

	We have heard what Mr Ostridge has to say.  We are not questioning his good faith in any way, but nonetheless having considered this as carefully as we can we cannot find any point of law here.  We cannot say that this exercise of jurisdiction by the Tribunal in refusing to re-open their decision, having heard all the evidence, was in any way flawed or vitiated by any error of law or indeed any other error at all.  It was the decision which one would, with great respect, have expected but however that may be and whatever view we take of the facts the point is that it is an exercise of discretion by the Industrial Tribunal with which we cannot interfere.

	In those circumstances, having heard all that has been said to us, we cannot allow the appeal to proceed any further and it must be dismissed.