Appeal No. EAT/1424/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 May 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR J HOUGHAM CBE
MS B SWITZER

MR B CONNOLLY	APPELLANT

SCOTTISH COURAGE LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS C. O’DONNELL
(of Counsel)
Instructed By:
Blyth Valley Citizens 
Advice Bureau
The Eric Tolhurst Centre
3 - 13 Quay Road
Blyth
Northumberland	

MR JUSTICE WALL:
1.	This case comes before us in somewhat unusual circumstances.  It is the preliminary hearing of an appeal by Mr Connolly against a decision of the Employment Tribunal sitting at Leeds on 20 July 2001 when that Tribunal struck out Mr Connolly’s claim against his former employer, Scottish Courage Ltd under Regulation 15(2) of schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001.  The relevant regulation reading:

(c)	“Subject to paragraph (3), at any stage of the proceedings (the Tribunal may) order to be struck out or amended, any Originating Application or Notice of Appearance or anything in such Application or Notice of Appearance on the grounds that it is scandalous, misconceived or vexatious.”

and sub-paragraph 3 reads, before making an order under sub paragraph (c):

“the Tribunal shall send notice to the party against whom it is proposed that the order shall be made, giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the Tribunal to send such notice to that party if the party has been given opportunity to show cause orally why the order should not be made”

2.	The chronology of the case is of course of critical importance.  In his form IT1 issued on 11 August 2000, Mr Connolly claimed unfair dismissal and discrimination under the Disability Discrimination Act 1995 and TUPE against his employer.  For this purpose, the detail does not I think, matter.  It is relevant that the employer put in a very full and careful response.

3.	Mr Connolly’s employment ended on 15 May 2000.  Mr Connolly therefore had three months to put in his Notice of Application; he did so just within the time limit.  The Tribunal dealing with the application to strike out, recorded that the complaint was distinctly lacking in detail, with the result that the case was set down for a pre-hearing review which was conducted in October of 2000.  By that time Mr Connolly was represented by solicitors who sought permission to amend the originating application so that more detail of the complaint could be given.  Permission was given for the application to be amended within 21 days and further permission was given to the Respondent to submit an amended notice of appearance once the amended application had been filed.  Both those directions were complied with.

4.	Further directions given by the Tribunal for the conduct of the case and that order appears in our bundle at pages 14 (a) and (b).  One of the directions was that written statements of all witnesses upon whose evidence the parties intended to rely at the hearing, including that of the Applicant should be exchanged at the same time, but no later than 14 days before the hearing date.  The directions concluded with a direction that the date of the hearing would be notified in due course.  A note to that order says that the Chairman had made the directions because he believed that they would help the parties prepare properly for the hearing.  However, shortly before the date fixed for the hearing, the Respondent’s complained that there had been a failure on the part of the Applicant or his representative to comply with the directions.  Unfortunately it appears that at this point Mr Connolly parted company with his solicitors.  

5.	It appears to be the case according to the Tribunal that the senior litigation partner in the firm took the view that his claim was unlikely to succeed.  In any event, the Tribunal wrote to Mr Connolly indicating that due to the failure on his part or his representatives to comply with the directions already given, the Tribunal was minded to strike out the application unless cause could be shown within 7 days why that should not be done.  In fact the Tribunal found cause was not shown within 7 days.  It was actually a day late but the Chairman having considered the circumstances took the view that he would err on the side of caution and did not strike out the application but gave very specific directions with regard to the future conduct of the case.  

6.	Those directions are contained in a letter dated 9 May 2001, which records that the chairman had reviewed the file and directed that the Applicant shall send copies of all documents on which he intended to rely at the hearing to the Respondent on or before 25 May.  Secondly, the Applicant had to send a copy of his witness statement and that of any witnesses he intends to call on or before 25 May and the case was to be listed for hearing over 2 days and the parties were to return an enclosed pre-listing stencil on or before 25 May.  The letter concludes;

“Failure to comply with these directions which results in a hearing being either postponed or adjourned may have the consequence that the party at fault had to pay the wasted costs of the other party and the date of the hearing will be notified in due course.”

7.	Mr Connolly says that he did his best to comply with that order.  He submitted documents by hand to the Tribunal and the Respondents on the day the directions expired, 25 May, and he says the documents were checked by the Tribunal staff on receipt and no complaint concerning them was received either from the Tribunal or from the Respondent.  The Tribunal in its reasons, takes the point, that although Mr Connolly complied with part 1 of the order, i.e. delivering documents, he had not complied with part 2, namely witness statements.  Mr Connolly tells us today, through his representative, Mr Dyson, that no statement had been taken from him.  He being of the view that the previous direction, that statements should be exchanged shortly before the final hearing, was the direction which mattered and that in any event he did not have a clear idea of what was meant by witness statements.  

8.	At the same time he tells us that there were two witnesses who had written letters on his behalf for the purposes of the Social Security Appeal Tribunal and that those had been lodged with that Tribunal.

9.	Unfortunately the notice to Mr Connolly to show cause, why the proceedings should not be struck out, which the employer sent to the Tribunal and which the Tribunal responded to in a letter of 26 June, does not appear to have reached Mr Connolly, at least not immediately.  But that letter on 26 June, says in terms that there was to be a hearing to determine whether the originating application should be struck out on the grounds that it is frivolous and vexatious, that proceeding was to take place under the new rules, including the ability to strike out where the manner in which the proceedings had been conducted was unreasonable and that Mr Connolly would be given the opportunity to show cause at the oral hearing, why such an order striking out the originating application should not be made.

10.	Fortunately there was a follow up letter which we have been shown this morning, dated 4 July, confirming that the application to strike out would be heard on 20 July.  Mr Connolly received that either on the 5th or 6th and he was then able to show it to Mr Dyson at the Law Centre, certainly a week and possibly more before the date fixed for the hearing itself.  At the hearing which then took place, and which is the subject matter of this appeal, the Respondent employer produced a detailed chronology which is not in our papers, which Mr Dyson says he has not got either, which dealt with the history in some detail.  Mr Dyson, on behalf of Mr Connolly said that there was a hearing fixed for 9 August, that the Applicant, Mr Connolly had complied with the direction in relation to documents, accepted there was no provision of witness statements but submitted that that did not matter, because the amended originating application showed what the Applicant’s case was and copies of letters from the opposed witnesses have been sent to the Tribunal, therefore the Tribunal knew what the witnesses were going to say.

11.	The Tribunal summarised that submission essentially as being, “we do not think the Applicant should do anymore.”  The Tribunal recalls Mr Dyson as submitting that they should not take into account what Mr Connolly’s former solicitors have done or had not done because that was not his fault.  The Applicant, Mr Connolly was under medication due to illness, could not deal with matters without assistance and his representatives had withdrawn.  His solicitors had let him down but that was not his responsibility.  

12.	The Tribunal first of all, in dealing with those submissions, reminded itself that it was the creature of statute and that the rules of procedure required that cases should be dealt with promptly and that the capacity to deal with matters promptly was subject to cooperation of those who come before the Tribunal.  Parties to the Tribunal who seek in some way to frustrate the ethos of prompt dealing, did so at their peril.

13.	There was then a reference to the Human Rights Act 1998; to both parties having the right to a fair and speedy trial.  The Tribunal recorded that in its view, the prompt determination, been frustrated throughout this case, not through any fault of the Respondent but entirely through the fault of Mr Connolly, or those in whom he had placed his trust.  If that trust had been misplaced then whatever Mr Dyson said, that was a problem for Mr Connolly and not for the Tribunal or the Respondent.  If the Applicant had chosen legal representatives who had let him down, that was an issue between him and them, not between him and the Tribunal.  

14.	The Tribunal then expressed itself in fairly robust language.  It expressed the view that Mr Connolly had been given more latitude than the Tribunal had seen for an awfully long time and when on 9 May, further directions had been given, that really was the, “last chance saloon” for the Applicant.  Even today the Tribunal recorded the Appellant came before them by his chosen representative openly admitting that the directions had not been complied with and saying in essence; “It really does not matter.” 

15.	There is then this paragraph which begins; 

“Well that is not good enough, Chairmen of Tribunals do not spend a considerable part of their working day reviewing files and giving directions because it is fun, they do it because they believe in their professional view that the directions which they give will materially assist the party and the Tribunal in the proper determination of the case, when it eventually comes on for hearing.  The parties that fail to comply with the directions of the hearing must learn that that failure will result in a penalty.  Sometimes the penalty can be expressed in terms of a financial penalty by way of an award of costs, if there has been a failure which leads to costs being incurred by the other party, but there will be other occasions where the failure is so blatant that the Tribunal will feel constrained to use the rather draconian penalty which is available to it, of striking out in Originating Application of the failure as been by the Applicant or his or her chosen representatives or striking out the Notice of Appearance if the failure has been that on the part of the Respondent or his or her chosen representatives.  This is one of those occasions.  The directions for 9 May were the last chance for the Applicant, for some reason which the Tribunal cannot understand, those now representing the Applicant seem to feel the directions were in some way an option.  If there was a problem with the directions remedy was in his hand and those now representing him, an application could have been made to the Tribunal seeking a variation in the directions, we do not say that it would have been granted but at least the Applicant would have seemed to be complying, at least in the sense of cooperating with the Tribunal and the directions which have been given.  There has been no such application, the Applicant is in blatant disregard of the Tribunals directions and is not acceptable accordingly, the order which the Tribunal makes is that the Application is struck out by reason of the Applicants conduct of this case we are satisfied that the way in which it has been conducted is both frivolous and vexatious as well as unreasonable as defined by the new rules of procedure.”

16.	When the matter first came to this court, this Tribunal on appeal, a question was raised as to whether it was necessary for the Tribunal to see the extended reasons of the Tribunal for making the order.  A constitution of this Tribunal presided over by Commissioner Howell QC, made this direction:

“the matter shall be treated from now on as an application for the Employment Appeal Tribunal to exercise its discretion to waive the lack of extended reasons for the purposes of the appeal and if that application is successful, to consider the preliminary hearing of the substantive appeal contained in the Notice of Appeal.”

17.	We take the view that the reasons given by the Tribunal, although expressed as summary, are wholly sufficient for our purposes and therefore we proceed to deal with the appeal as we are required to do.  Mr Dyson has to show us that he has an arguable point of law which would make it proper for this appeal to proceed to a full hearing.  In our view, for him to demonstrate that he would have to show that in exercising its discretion under the regulations, the Tribunal had erred in some material respect in the exercise of its discretion and erred in such a serious way as to render that decision, either perverse or wrong in law or otherwise untenable.  We are here dealing with the exercise of a discretion over procedural issues and in our view it is very much for the Tribunal below to be the master of its own procedure, and provided therefore that the decision in this case is within the reasonable ambit of a judicial discretion, we cannot interfere with it even if we ourselves might have taken a different view had we been sitting at first instance.

18.	It is always a matter of anxiety when a case is struck out and not dealt with on its merits but as the Tribunal pointed out, the failure here, is one between the Applicant, Mr Connolly and those advising him not between Mr Connolly and the Tribunal and we are quite satisfied that this was a proper exercise of the Tribunal’s discretion.  We therefore, cannot interfere with it.

19.	In these circumstances it seems to us, there is no arguable point of law to go before the full Employment Appeal Tribunal and the appeal will accordingly be dismissed at this stage.-