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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fox v Anago Ltd [1994] UKEAT 32_92_1103 (11 March 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/32_92_1103.html Cite as: [1994] UKEAT 32_92_1103 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR R JACKSON
MRS M E SUNDERLAND JP
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR M MCPARLAND
(OF COUNSEL)
Messrs Kate Patterson &
Co
Solicitors
57 Laughton Road
Dinnington
Sheffield
S31 7PN
For the Respondents MR S SHALOM
(SOLICITOR)
Messrs Davis Black Furniss
2nd Floor
90 Deansgate
Manchester M3 2QJ
MR JUSTICE MUMMERY (PRESIDENT): This is the restored hearing of an appeal that first came before the Tribunal on 29 November. At the hearing on 29 November there was an initial difficulty in the way of the Appellant, Mr Fox, pursuing his appeal. The difficulty was that it had been discovered that the Respondent Anago Ltd had been struck off the register by the Registrar of Companies and consequently dissolved. There was therefore no longer in existence a Respondent who could resist the appeal or pursue the cross-appeal.
After hearing full argument from Mr McParland, who appeared on behalf of Mr Fox, and in the absence of Anago Ltd, the Tribunal made an Order. The terms of the Order and the reasons for it were explained in a full judgment given by the Tribunal explaining the background to the dispute and the particular problems arising as a result of Anago's dissolution. The Order was that the appeal should be adjourned to a date to be fixed; that Anago Ltd and Others who were interested in the affairs of Anago should be given liberty to apply to this Tribunal to make representations within 14 days. An Order was made that the Chairman's Notes of Evidence relating to Mr Stephen Brown should be produced. They are relevant to one of the grounds of appeal; it was ordered that a copy of the transcript of the judgment given by this Tribunal should be sent to the parties and a copy of the Skeleton Argument prepared by Mr McParland should be sent to the Respondent. The Respondent was given the right to make further representations on the appeal and produce, if it wished to do so, a Skeleton Argument at least 14 days before the hearing of the appeal. The only other Order that was made was for a legal aid taxation of Mr Fox's costs.
The Order has been largely complied with. There are now available the Chairman's Notes of the evidence given by Mr Brown before the Industrial Tribunal. So far as this Tribunal is aware all the relevant steps were taken for the service of the Skeleton Argument and the transcript of the judgment.
This appeal was then restored on the application of the solicitors acting for Mr Fox. It appears that little progress has been made about the status of Anago Ltd. The position is that a letter has been written to the Tribunal dated 1 March by Davis Blank Furniss, a firm of solicitors in Manchester. They have instructions in this matter from yet another company called Tecnol Inc, a corporation existing under the laws of a state in the United States of America. We are told by Mr Shalom, a partner in Davis Blank Furniss, that Tecnol Inc is the successor to the business of Anago Inc. as a result of a hostile takeover. Anago Inc was the holding company of Anago Ltd which, before it was dissolved, carried on trading operations in this country.
The position explained in the letter of 1 March is that Anago Ltd remains dissolved. Mr Shalom is seeking instructions from Tecnol Inc as to whether or not to apply for the restoration of Anago Ltd to the Register, as to whether they wish to be heard in connection with Mr Fox's appeal and whether they wish to be appraised by him (Mr Shalom) of the developments thus far in the tribunal case in order to formulate an opinion. For those reasons Mr Shalom stated in the letter that he would not be ready for the hearing today. It would be necessary to ask for an adjournment for 3 months for the purposes of informing the client of the situation and receiving full instructions.
In oral submissions Mr Shalom stated that he was prepared to give a solicitor's undertaking that he would apply on behalf of Tecnol Inc and any other relevant party within 14 days for the restoration of Anago Ltd to the register. He made it clear that the purpose of having Anago Ltd restored to the register is with a view to contesting Mr Fox's appeal on the merits and to pursuing the cross-appeal. He made it clear that he was in no position to deal with the merits of the appeal today through lack of instructions and lack of sufficient time to prepare the arguments.
The application was opposed by Mr McParland. His preferred course of action was that we should hear the appeal, allow the appeal and remit the matter to a different Industrial Tribunal. He also asked us to dismiss the cross-appeal. He explained that there had been prejudice to his client as a result of what he describes as delaying tactics on the part of the Respondent. He referred, in particular, to the interaction of these proceedings with proceedings in the High Court between these parties and other parties. The immediate concern of Mr McParland is that an application will be heard in the Mercantile Court in Manchester next week, in which Mr Fox will make an application in the High Court proceedings for the Mareva injunction freezing his assets up to £750,000 to be discharged; He will apply for an enquiry on the cross-undertaking in damages given on the granting of that Mareva and will seek to have the proceedings against Mr Fox dismissed for want of prosecution and abuse of process.
Mr McParland was naturally concerned that the way in which this Tribunal dealt with this appeal might have prejudicial effects on Mr Fox's application next week. Adjournment of these proceedings, for example, for the purposes of restoration of Anago Ltd to the Register might be used by Mr Shalom as a ground for seeking an adjournment of the hearing of Mr Fox's application for the discharge of the Mareva injunction..
This is a novel situation. There is no clear law as to what we should do. We have to go back first to first principles. We must have to have in mind the practicalities of the situation. The first principle is that litigation cannot be effectively pursued by or against a non-existent party. The position is that there are practical and theoretical difficulties in pursuing the appeal and the cross-appeal until Anago Ltd is restored to life. We understand why Mr McParland wishes this matter to be dealt with now, but when he spelt out the Order proposed on the effective hearing of the appeal, it was clear that he ultimately seeks a remission of this case to an Industrial Tribunal and to pursue the claim for unfair dismissal.
In our view, to make an Order today remitting the matter to the Industrial Tribunal would be a futile Order. No progress whatsoever could be made with the claim unless and until Anago Ltd is restored to life. If attempts were made by Mr Fox to pursue his claim, consequent on the appeal being allowed and the matter remitted, he would be met in the Industrial Tribunal with the difficulty that he had nobody to sue. It is premature to dispose of the appeal substantively today. It would be better to wait until effective steps can be taken to restore Anago Ltd to the register.
In view of the history of the matter, Mr McParland's client is justifiably concerned that, although Mr Shalom has given an undertaking to apply for restoration, there may be delays in compliance. Mr Shalom has outlined the difficulties that he may have in securing instructions from individuals in the United States and in obtaining evidence relevant to the application, such as up-to-date accounts and other information required by the Registrar of Companies before he could decide what position he would take. Because of Mr McParland's anxieties we make it clear that, in granting the adjournment on the undertaking given by Mr Shalom, that Order is Without Prejudice to any steps which Mr Fox himself may be advised to take to have Anago Ltd restored to the register. It is clear from the provisions of the Companies Act (section 653(2)) and from the provisions of RSC Order 102/2/29 that an application for restoration may be made not only by the Company itself, or by its directors or members, but also by a creditor, including a contingent or prospective creditor. On the information available Mr Fox would fall within the category of a contingent or prospective creditor, since he has proceedings on foot in which he claims compensation for unfair dismissal.
There may be difficulties for Mr Fox in pursuing this appeal. Although Mr Fox has legal aid for this appeal and in the High Court proceedings, the legal aid does not, and will not, extend to proceedings before the Industrial Tribunal. It does not at present extend to proceedings in the Companies Court. He can, however, apply for emergency legal aid to cover such an application if he makes out sufficient grounds.
For these reasons, what we propose that, rather than hear the appeal substantively, we will adjourn it for 3 months, so that appropriate steps can be taken by either the Company and those concerned with it or by Mr Fox to have the Company restored. That will enable the appeal to be heard on the merits with arguments on both sides. Even if there are no arguments on both sides, there would at least be a party existing on both sides and a realistic attempt can be made to dispose of the appeal.
For the reasons mentioned it would be premature to dispose of the appeal before all appropriate steps have been taken to restore Anago Ltd to the register. The Order is the adjournment is granted for 3 months, on an undertaking by Mr Shalom that an application will be made within 14 days of today for the restoration of Anago Ltd to the register. That Order is Without Prejudice to any steps that Mr Fox may be advised to take to have Anago Ltd restored to the register.
