Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  5380/18

 

CLAIMANT:                          Caoimhe Lavery

 

RESPONDENT:                  Clare Ferris t/a Flick Hairdressing

 

 

 

DECISION ON REVIEW

 

The decision of the tribunal is that:-

 

The tribunal, having refused to grant the claimant’s application that the decision of the tribunal, recorded in the register and issued to the parties on 14 January 2019 required a review in the interests of justice pursuant to Rule 34 of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal confirms the said decision, striking out the claimant’s claim for failing to comply with an “Unless Order” dated 7 September 2018 and subsequently amended on 11 October 2018.

 

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge (sitting alone):                   Employment Judge Drennan QC

                       

 

 

APPEARANCES:

 

The claimant was represented by Mr P Sullivan, Barrister-at-Law, instructed by Pat Vernon & Co. Limited, Solicitors.

 

The respondent was represented by Mr T Jebb, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

 

REASONS

 

1.1       In a decision recorded in the register and issued to the parties on 14 January 2019, the tribunal made a decision that the claimant’s claims, and each of them, against the respondent, were struck out, pursuant to Rule 13(2) of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, on the grounds that the claimant failed to comply with an “Unless Order”, dated 7 September 2018 and subsequently amended on 11 October 2018.

 

1.2       At a Case Management Discussion on 16 January 2019, as set out in the record of proceedings dated 17 January 2019, the claimant’s then representative, Mrs Laura Lavery, the mother of the claimant, confirmed that the claimant wished to make an application pursuant to Rules 34-36 to the Rules of Procedure for a review of the tribunal’s said decision striking out the claimant’s claim, as set out in her letter to the tribunal, dated 22 October 2018.  As a consequence, this Review Hearing was listed for hearing.

 

1.3       In the said record of proceedings, dated 17 January 2019, I directed Mr Pat Vernon, solicitor of Pat Vernon & Co Limited Solicitors, to confirm to the tribunal, in writing, by close of business on 18 January 2019 that he was now on record for the claimant.  Regretfully, Mr Vernon did not so confirm his position to the tribunal but, at this Review Hearing, Mr Sullivan confirmed that Mr Vernon, who had instructed him in this matter, was now on record for the claimant.  The tribunal file will be amended accordingly.  In an email, dated 25 January 2019 to the tribunal and the respondent’s representative, Mr Sullivan, on behalf of Mr Vernon confirmed, pursuant to the Order of the tribunal made at the Case Management Discussion on 16 January 2019, as set out in the record of proceedings, dated 17 January 2019, that the claimant wished to rely on the said letter of 22 October 2018 as details of the grounds for her application for a review of the tribunal’s decision to strike out her claim and had no further or other details of the said grounds to provide.  I shall refer to this letter in more detail later in this decision.

 

1.4       The said application for review was made, pursuant to Rule 34(3)(e) of the Rules of Procedure contained in Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the Rules of Procedure) on the grounds that the interests of justice require a review.

 

2.         The Rules of Procedure, insofar as relevant in relation to this application, provide as follows:-

 

                        “Rule 34 – Review of Other Decisions

 

                        (i)         Parties may apply to have certain decisions made by a tribunal or a chairman reviewed under this Rule and Rules 35 and 36.  Those decisions are –

 

                        ….

 

                                    (b)       a decision which is a final determination of the proceedings or a particular issue in those proceedings …..

 

                        ….

 

                        (iii)       …. Decisions may be reviewed on the following grounds only.

 

                                    (e)       The interests of justice require a review.

 

                        Rule 35 – Preliminary Consideration of Application for Review

 

                        (i)         An application under Rule 34 to have a decision reviewed must be made to the Offices of the Tribunal within 14 days of the date in which the decision was sent to the parties.  The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so. 

 

                        (ii)        The application must be in writing and must identify the grounds of the application in accordance with Rule 34(3) and provide the details of the grounds so identified.

 

                        (iii)       The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision …. and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under Rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.

 

            ….

 

                        Rule 36 – The Review

 

                         (i)         Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in Rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision.

 

                        ….

 

                        (iii)       A tribunal or chairman who reviews a decision under paragraph (1) …. may confirm, vary or revoke the decision.  If the decision is revoked, the tribunal or chairman must be order the decision to be taken again ….”

 

            (At the Case Management Discussion on 16 January 2019, on foot of the claimant’s application for review, I directed, by consent, this Review Hearing, after carrying out a a preliminary consideration of the said application for a Review).

 

            Rule 13 – Compliance with Orders

 

            …..

 

            (2)       A decision or order may also provide that unless the decision or order is complied with the tribunal or chairman may make a decision staking out the claim or, as the case may be, the response on the date of non-compliance without further consideration of the proceedings or the need to give notice under Rule 19 or hold a Pre-Hearing Review or a hearing under Rule 26.

 

[Tribunal’s emphasis]

 

3.1.      The ground for review – “interests of justice require a review”, set out in Rule 34(3)(e) of the Rules of Procedure has often been referred to as a residual category, giving the tribunal a wide discretion (see Flint v Eastern Electricity Board [1975] IRLR 277).  However, it was also held in Flint, although the discretion is undoubtedly wide, it was not boundless and it must be exercised judicially having regard to the terms of the overriding objective; and with regard, not just to the interests of the party applying for a review but also the other party and the public interest requirement that there should be, as far as possible, finality of litigation.

 

3.2       It used to be thought a review on these grounds could only be granted in “exceptional circumstances” (see Trimble v Supertravel Ltd [1982] IRLR 451).  This was doubted in Williams v Ferrorsan [2004] IRLR 607, which held that, in light of the overriding objective, there was in fact no reason for an “exceptionality hurdle and that there is a difference between saying that a case, to which the interests of justice ground applies, will in practice be unusual or exceptional and saying that this ground should be read as if inserted into it are the words ‘exceptional circumstances’ (see also Sodexho Ltd v Gibbons [2005] ICR 1647).  These authorities also emphasise that such a review is not an opportunity for a disappointed party to proceedings to get a second bit of the cherry.  In Stevenson v Golden Wonder Ltd [1977] IRLR 474, Lord McDonald said the review provisions were “not intended to provide the parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis ….”

 

3.3       In the case of Newcastle upon Tyne City Council v Marsden [2010] ICR 743, Underhill P, as he then was, reviewed the relevant principles and expressed the view the “broad statutory discretion has become gradually so encrusted with case law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case.  He accepted tribunals were no longer required to apply an exceptionality test when considering applications on the grounds of interests of justice requiring a review nor any other type of restrictive formula, such as “procedural mishap or procedural shortcomings”, as referred to in Trimble; but he warned against rejecting the basic principles in the older cases and, in particular, after referring to Rimer LJ’s statement in Jurkowska v Himad Ltd [2008] ICR 841 that “dealing with cases justly requires that they be dealt with in accordance with recognised principles” and held that the principles set out in Flint and other cases to the importance of finality of litigation remained valid.  In the recent case of Ministry of Justice v Burton [2016] EWCA Civ 714, albeit pursuant to Rule 70 of the 2013 Rules of Procedure in Great Britain, relating to “reconsideration where it is necessary in the interests of justice”, which has replaced the previous role in Great Britain which was similar to Rule 34 of the Rules of Procedure in Northern Ireland.  Elias LJ, at paragraph 21, stated the discretion to act in the interests of justice is not open-ended and emphasised the importance of finality, which he said militated against the discretion being exercised too readily.  In Outasight v B Ltd v Brown [2015] ICR DII, the EAT confirmed that Rule 70 of the 2013 Rules of Procedure did not alter the substantive legal principles relating to “interests of justice”, established under the previous rule.

 

3.4       It was long recognised in Great Britain that an application for a Review, on the grounds the interests of justice require a review, was an appropriate way for a party to seek relief from the consequences of his failure to comply with an Unless Order, pursuant to the Employment Tribunal Rules of Procedure 2004, which provided that there was an automatic dismissal where there was a breach of an Unless Order.  In two recent decisions, I have reviewed the tribunal’s powers in relation to exercise of the tribunal’s discretion, pursuant to Rule 13(2) of the Rules of Procedure, to strike out a claim where there has been failure to comply with an Unless Order, the tribunal’s discretion to grant a review of any such decision in the interests of justice, together with the differences between the Rules of Procedure in Northern Ireland and in Great Britain in relation to such matters and how, in my judgment, despite the said differences in the terms of the Rules of Procedure in Northern Ireland and Great Britain, similar principles require to be applied in this jurisdiction to those which have been applied in Great Britain.  (See further Cuthbert v Tesco Stores Limited 9 January 2018 and Davidson v Armagh Banbridge and Craigavon Council and Others 24 April 2018).  In the circumstances, and for the reasons set out below, I do not think it is necessary to set out in detail what I have already set out in the decisions in Cuthbert and Davison but I have fully considered and taken into account the principles set out in the case law referred to therein in reaching my decision, as set out below.  Many of the authorities referred to in Davidson have been confirmed in the recent decision of the Employment Appeal Tribunal in the case of Amey Services Ltd v Cunning and Other [2018] UKEAT 008/18/1008.

 

4.1       In the letter of 22 October 2018, the claimant, in essence, seeks relief from the sanction that her claims had been dismissed for failure to comply with the Unless Order, dated 7 September 2018 and subsequently amended on 11 October 2018.  In the letter, reference is made to the alleged failures of the claimant’s former solicitors, who came off record on or about 21 August 2018, as confirmed by the tribunal in correspondence, by post, to the parties on or about 30 August 2018.  In deciding to strike out the claimant’s claims, and for the purposes of this review, I have not considered the alleged failures of the claimant’s former solicitors; but only the actions of the claimant and her subsequence representatives since that date, which has been more particularly set out in the history of this matter, as recorded in the strike out decision.

 

4.2       The claimant has sought to suggest, both in her application, as set out in the letter of 22 October 2018, but also at this review, that she did not have the relevant knowledge of what was taking place in the period from the beginning of September 2018 onwards and, in particular, what she was then required to do.  This suggestion is not correct, as had to be properly accepted by the claimant’s representative at this hearing, since all relevant correspondence was sent by the tribunal to the claimant by post, including, in particular, copies of the Unless Order, as amended, copies of the interlocutory notices, the relevant records of proceedings, dated 7 September 2018, 11 October 2018, together with the letter of 23 October 2018, with the amended terms of the Unless Order, and the record of proceedings dated 16 January 2019, all of which clearly set out what the claimant was required to do in order to comply with the tribunal’s Orders.  Despite all of this, the claimant has still not complied, to the date of this hearing, with the said Unless Order, which required her to provide a schedule of loss and replies to paragraphs 7, 8, 9,10 and 13 of the respondent’s Notice for Additional Information.  It is to be noted that, in limiting the replies, as set out above, to the respondent’s Notice for Additional Information, this was done as an amendment to the original Unless Order, by way of an earlier relief from sanction, as set out in the record of proceedings dated 11 October 2018.  The claimant also received reminders by email of what she was required to do by the respondent’s representative during the course of the proceedings.

 

            The claimant suggested, at this hearing, that she did not look at any emails sent to her by the tribunal or the representatives of the respondent during the course of these proceedings, even though she had provided this email address on her claim form.  Even if this is correct, which I find difficult to accept, all the relevant documents, as set out above, was sent to the claimant by post by the tribunal and she therefore, in my judgment, had full knowledge of all relevant matters.  I also note that, despite her alleged lack of knowledge, the claimant was able to comply with the tribunal’s previous Orders to provide, on or about 27 September 2018, the claimant’s witness statement and her discoverable documents. 

 

4.3       During the course of discussion at this Review Hearing, it became apparent that the claimant had sought advice from Mr Vernon, solicitor, in or about mid-September 2018 at a time when it had become clear to the claimant that her previous solicitor had come off record.  However, she did not attend Mr Vernon’s office, despite the urgency of the situation, as indicated in the records of proceedings, until on or about 16 October 2018.  There was then a further consultation in his office in mid-November 2018.  The claimant consulted with counsel on 24 January 2019.  Despite all of the above opportunities and, in particular the additional time the claimant has now had, to resolve the situation and comply with the tribunal’s said Unless Order, as amended, she attended this hearing with no schedule of loss or the relevant Replies to the respondent’s Notice for Additional Information; although she was fully aware she required to persuade the tribunal, at this review hearing to exercise its discretion, despite all the previous failures on her part, to revoke the strike out decision, on review, on the grounds the interests of justice require such a review.  In this context, it is to be noted that in an email, dated 17 October 2018, in relation to the hearing on 19 October 2018, the claimant and Mr Vernon were told a relevant factor for the Employment Judge to consider by that date/time, would be whether the Unless Order had been fully complied with.  I could find no good reason why the said schedule of loss and replies were not produced by the claimant at the commencement of this hearing.  In the circumstances, applying the principles and guidance set out in the case law, as set out in the decision in Cuthbert and Davidson, I can find no good reason to revoke the decision in the interests of justice, given the continuing breach of the Unless Order in the circumstances outlined above.  In particular, the claimant has had every opportunity and time given to her to remedy the situation but she has failed to do so, despite advice and consultation with legal representatives up to and including this date of hearing.  Further, there remains material non-compliance with the Unless Order, the terms of which were clear and of which she had full knowledge.

 

5.         In the circumstances, in light of the foregoing, I do not consider that it is in the interests of justice to grant a review of the decision to strike out the claimant’s claims and to thereby revoke, upon review, the said decision. Therefore, the decision striking out the claimant’s claims against the respondent is confirmed.

 

 

 

           

Employment Judge:

 

Date and place of hearing:          1 February 2019, Belfast.

 

Date decision recorded in register and issued to parties: