Towell v Craig & Anor [2004] NIIT 1714_03 (20 April 2004)

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Towell v Craig & Anor [2004] NIIT 1714_03 (20 April 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/1714_03.html
Cite as: [2004] NIIT 1714_03, [2004] NIIT 1714_3

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 1714/03

    APPLICANT: Christopher Towell

    RESPONDENTS: 1. Gary Craig

    2. The Social Security Agency

    DECISION OF A TRIBUNAL ON A PRE-HEARING REVIEW

    Appearances:

    The applicant did not appear and was not represented.

    The respondent was represented by Mr P Butler, Departmental Solicitor's Office.

  1. By his Originating Application, presented on 17 June 2003, the Applicant complained that he had been discriminated against on ground of his race and disability. At section 13 of the Originating Application, the Applicant stated only this – "narrative to follow".

  2. The first Respondent entered a Notice of Appearance on 9 July 2003. This replicates the contentions of the second Respondent, as below.

  3. By its Notice of Appearance presented on 11 July 2003, the second Respondent denied the Applicant has a disability within the meaning of the Disability Discrimination Act 1995; that the Applicant was treated less favourably for a reason relating to disability; and - in the alternative - that any such treatment was justified. Moreover, the Respondent denied that the Applicant was unlawfully discriminated against on ground of his race, and continues;

    4. The Originating Application does not disclose any complaint. It is marked "narrative to follow".

    The Notices of Appearance also reserved the right to raise the issue that the application is out of time.

  4. By a Notice of Hearing issued on 3 February 2004, the parties were notified that the matter was listed on 20 April 2004 by way of a Pre-Hearing Review.

  5. By letter dated 16 March 2004, and addressed to the Office of the Industrial Tribunals, Mr Ian Rosbotham of NIPSA set out details of what he submitted should form the narrative of section 13 of the Applicant's Originating Application.

  6. By letter dated 1 April 2004 to the Office of Industrial Tribunals, Mr Butler for the Respondent submitted, inter alia, that the complainant's Originating Application is "incomplete, with particular reference to Rule 1(1)(c) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 1996" ["the 1996 Rules"]. In particular, Mr Butler's contention was that section 13 of the Originating Application fails to satisfy Rule 1(1) (c) of the 1996 Rules, which provides that the complaint should be in writing and shall set out "the grounds, with particulars thereof, on which the relief is sought". Therefore, Mr Butler contends that, since the complaint is made up to 18 March 2003 and the "particulars thereof" were not received until the letter dated 16 March 2004, that;

    7. (a) The complaint should be dismissed for being incomplete when presented on 17 June 2003; and
    (b) The properly constituted complaint was comprised only in March 2004, and this renders the entire complaint grossly out of time;

    (c) Albeit the Tribunal has a statutory discretion to extend time, the complaint is so out of time that the Tribunal should refuse to exercise this statutory discretion.
  7. The Applicant did not appear before us on 20 April 2004 and was not represented. There was no explanation from either the Applicant or Mr Rosbotham as to why there was no such appearance by either or both of them.

  8. Before us on 20 April 2004, Mr Butler sought a deposit of £150.00, pursuant to Rule 7(4) of Schedule 1 to the 1996 Rules.

    9. The Decision of the Tribunal on a Pre-Hearing Review:

  9. Having considered the contentions put forward by Mr Butler today, the Tribunal unanimously determines as follows;

    10. (a) The 1996 Rules were superseded by the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004 {SR: 2004 No 165} on 4 April 2004 ["the 2004 Rules"]. This decision of the Tribunal on a Pre-Hearing Review is made pursuant to Rule 7 of Schedule 1 to the 2004 Rules;
    (b) The Originating Application presented on 17 June 2003 fails to comply with Rule 1(1)(c) of Schedule 1 to both the 1996 and the 2004 Rules in that the Applicant manifestly failed to set out written grounds, with particulars thereof, of the relief which he seeks;

    (c) The Respondents' Notices of Appearance clearly take issue with this failure to comply with Rule 1(1)(c) of Schedule 1 to both the 1996 and 2004 Rules;

    (d) It was not until after the Notice of the Pre-Hearing Review, dated 3 February 2004, was issued that Mr Rosbotham presented what he submitted should form section 13 of the Originating Application, by letter dated 16 March 2004. The Tribunal notes that Mr Rosbotham makes no explanation or apology for the delay in presenting same from 17 June 2003 to 16 March 2004;

    (e) The Tribunal is satisfied that the requirements of Rule 7(4) of Schedule 1 to the 2004 Rules are met because the Applicant has manifestly failed to comply with the provisions of Rule 1(1) (c) of Schedule 1 to the 1996 and 2004 Rules. The failure by the Applicant, or his representative, to rectify this non-compliance with the Rules from 17 June 2003 to 16 March 2004 renders the presentation of a properly-comprised Originating Applicant (as defined by Rule 1(1) (c) of the 2004 Rules) grossly out of time. The Tribunal thus considers the complaint has no reasonable prospect of success;

    (f) Further to our determination at 9(e) above, the Tribunal hereby orders the Applicant to lodge a deposit of £150.00 as a condition of being permitted to continue to conduct these proceedings;

    (g) Given that, pursuant to the 2004 Rules, the maximum deposit the Tribunal can order is £500.00, and given that neither the Applicant nor his representative in the letter dated 16 March 2004 addressed the issue of the Applicant's ability to pay such an amount (even though they were notified that the matter was set down for a Pre-Hearing Review by notification of 3 February 2004), and further given that neither the Applicant nor his representative have appeared before us today to make submission as to the Applicant's inability to pay any such amount, the Tribunal (pursuant to Rule 7(5) of Schedule 1 to the 2004 Rules) determines that, by its notification of hearing dated 3 February 2004, it has taken reasonable steps to allow it to ascertain the Applicant's ability to pay this deposit, and has thus complied with the duties on it as provided by Rule 7(5) above;

    (h) By Rule 7(7) of Schedule 1 to the 2004 Rules, if the Applicant has not paid the deposit of £150.00 within 21 days of the day on which this Decision is sent to him, the Tribunal shall strike out the Originating Application.

    (i) Pursuant to Rules 14 (7) – (8) of the 2004 Rules, if the Applicant persists in conducting this compliant, and an Industrial Tribunal on hearing the substantive complaint, finds against him, the Applicant may lose his deposit and may also have an award of costs made against him;

    (j) No further or other Order is made.

    Chairman:

    Date and place of hearing: 20 April 2004, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/1714_03.html