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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mohindra v. London Borough of Ealing & Ors [2003] UKEAT 0149_03_0907 (9 July 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0149_03_0907.html Cite as: [2003] UKEAT 0149_03_0907, [2003] UKEAT 149_3_907

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APPEARANCES

 

For the Appellant	MR N TOMS (of Counsel) Instructed by: London Race Discrimination Unit c/o Unit 46 Eurolink Business Centre 49 Effra Road London SW2 IBZ
For the Respondents	MR T GALLIVAN (of Counsel) Instructed by: London Borough of Ealing Corporate Resources Legal Services Perceval House 14/16 Uxbridge Road London W5 2HL


 


THE HONOURABLE MR JUSTICE WALL

1. On 7 December 2001 Mrs Sandhya Rani Mohindra (the Appellant) filed a form IT1 in the Watford Employment Tribunal, alleging unlawful racial discrimination and victimisation against six named Respondents. There were (1) The London Borough of Ealing (Ealing) ; (2) Perivale Primary School Governing Body; (3) Mr A Parker; (4) Dr C Whalley; (5) Mr B Anderson; and (6) Mr R Brown. The form IT1 disclosed that the Appellant was the Head Teacher of the Perivale Primary School. Mr Parker was Ealing's Director of Education; Mrs Whalley was the Deputy Director; Mr Anderson was Ealing's Head of School Management and Mr Brown was an inspector attached to Ealing.
2. The form IT1 stated that the Appellant had been the Head Teacher of Perivale Primary School from September 1997, and remained so employed. Box 9 of the form IT1 indicated that the matters about which the Appellant was complaining took place between 20 September 2001 and 7 December 2001 and were "continuous and ongoing". The details of the complaint take up six pages of single spaced A4 typescript. On 8 February 2002, Ealing filed its Notice of Appearance. That document occupies some eighteen pages of A4.
3. On 22 March 2002 there was the equivalent of a pre-hearing conference for the Chairman of the Watford Employment Tribunal, Mr R. Cassel. The Appellant was represented by Miss Nicola Dandridge, of Thompsons Solicitors, instructed by the Appellant's trade union, the National Association of Head Teachers (NAHT). Ealing was represented by Mr T Gallivan, of Counsel, who represented Ealing on this appeal.
4. The Tribunal made a detailed Order for Directions, which was promulgated on 10 April 2002. Mr Cassel recorded, in what is described as a "Note of Discussion" that Miss Dandridge was to consider over the next seven days whether or not the Appellant wished to proceed against Ealing alone, and withdraw proceedings against the named individuals. Both Mr Gallivan and Miss Dandridge clarified that "the allegations made by both parties were of fundamental importance and seriousness" and that the documents that were relevant to the proceedings might extend to sixteen lever arch files. Both parties indicated that they would seek to agree core documents, and to co-operate fully in the presentation of the documentary exhibits.
5. The Tribunal had allocated twenty days to the liability hearing, and the parties had been reminded that it might be necessary for the Tribunal to timetable and/or time-limit the case to ensure that it was completed within the time allocation. Finally, should there be a need for a remedies hearing, Miss Dandridge indicated that medical evidence might be relevant but that, doing the best that she could, she would try to ensure that an outline medical report would be available for inclusion in the schedule of loss.
6. The Interlocutory Order itself provided a carefully structured timetable leading to the ultimate hearing. Permission was given for the Originating Application to be fully particularised by 19 April 2002, and thereafter permission was given to Ealing to amend is Notice of Appeal by 10 May 2002.
7. The Appellant was directed to serve on Ealing further and better particulars of the claim as sought by Ealing's request dated 12 February 2002 (which I have not seen). That was also to be done by 19 April 2002. The Appellant was also to prepare and serve upon Ealing and the Tribunal a schedule setting out all losses which were claimed in the proceedings. The schedule had to date all facts and matters relied upon in support of the sums claimed and had to show how they had been calculated. That was to be done on or before 31 May 2002. I was told that particulars had been provided pursuant to this paragraph.
8. Paragraph 3 of the Order provided that there was to be mutual disclosure of all documents on or before 20 May 2002; that a joint bundle of statements considered necessary to the resolution of the case was to be agreed and prepared eight weeks prior to the first day of the hearing of the application. The application was listed for hearing on 18 November, so that the joint bundle of statements had to be ready by 23 September 2002. By the same date, the Appellant was to prepare a bundle of documents, indexed and paginated and in chronological order, six copies of which were to be brought to Tribunal on the first day of the hearing. Also by 23 September 2002 witness statements of each of the witnesses intended to be called had to be mutually exchanged. Each party was to bring to the hearing a typed or legibly written statement of each of those witnesses, and six copies had to be prepared for use by the Tribunal. Any supplemental statements were to be prepared and exchanged four weeks prior to the hearing. The Chairman directed that the parties would require the leave of the Tribunal hearing the case before supplemental questions could be asked.
9. The parties were directed to prepare and agree a chronology of the important dates of events to which the complaints related. A list was to be prepared of the individuals named and relevant to the proceedings, with a brief description of their respective responsibilities. Once again, six copies of each document were to be available for use at the hearing.
10. The Appellant was to lodge a Skeleton opening fourteen days before the hearing, and Ealing was given permission to lodge a Skeleton opening statement before the hearing. Outline legal submissions were to be submitted in writing and details of any legal authorities cited were to be given to the other parties fourteen days before the hearing. The Tribunal allocated twenty days to the hearing of the case. That time was considered reasonable in order that the Tribunal could hear the case and have sufficient time to deliberate, to announce its decision, if possible, on liability.
11. Finally, the case was listed for hearing on 18 November 2002 and the following nineteen week days. The Order concludes:

"The parties having been consulted over listing these dates should now be regarded as a fixture which will only be vacated in the most exceptional and extenuating circumstances."

12. By a letter dated 7 May 2002, Thompsons wrote to the Tribunal withdrawing the Appellant's claims against the Third, Fourth, Fifth and Sixth Respondents (that is Mr Parker, Mrs Whalley, Mr Anderson and Mr Brown). The claims against the London Borough of Ealing and the Perivale Primary School Governing Body remained. Accordingly, on 15 May 2002, the Tribunal dismissed the applications against the individual Respondents.
13. The Appellant did not attend the directions hearing on 22 March 2002, although it is clear from a letter that she wrote to the Regional Secretary on 16 October 2002 that she met her legal representatives on five separate occasions, namely 8 March 2002, 27 March 2002, 24 April 2002, 17 May 2002 and 3 July 2002. Her case is that she received no feedback regarding the outcome of the hearing and, in particular, that she was not aware of the hearing date until 15 August 2002. She states further that although she was ordered to exchange witness statements by 23 September 2002, the first she knew of that Order was, likewise, 15 August 2002. She says that the discussions she had with her solicitors related to Ealing's response to the IT1, and her response to Ealing's request for further and better particulars. She says she was aware that there were various communications between her solicitors, the NAHT and Ealing, but that she was not privy to those discussions.
14. There is in the papers an exchange of e-mails on 15 August 2002 between the Appellant and Miss Dandridge, beginning with Miss Dandridge's e-mail to the Appellant, sent at 10.51 am. Miss Dandridge writes as follows:

"Sandhya, as discussed I confirm that the Tribunal has fixed hearing dates in your case for 18^th November 2002. 20 days have been set aside for the hearing. I think it very unlikely that it will last that long, but the days are there if needed. I had thought that we had discussed that date before but if not I am very sorry.

In terms of deadlines, this means that we have to disclose your witness statements 8 weeks before the hearing (though there is scope for agreeing a later date if more time is needed). That means that your witness statement (setting all the points that you want to make to the Tribunal) should be ready by 23^rd September. As you know I have already started preparing this, so if you did end up dealing with the Tribunal case, it should not be too difficult to finish it off. The other deadline that is coming up is that we have to let the Council and Tribunal know by 29^th August what the total amount is that we are claiming. I have already prepared a draft Schedule of Loss, but it needs finalising in particular regarding the medical evidence. We will need to discuss this prior to 29^th August."

15. There had plainly been a telephone conversation between the Appellant and Miss Dandridge on the morning of 15 August 2002, and at 11.27 am Miss Dandridge E-mailed the Appellant in the following terms:

"I am waiting to hear from NAHT with their instructions as to what they want me to do regarding the second opinion. In the meantime, I confirm that I am of course taking all steps necessary in the Tribunal case to protect your position.

In terms of witness statements, as per my previous email I have started preparing your witness statement. I have no details of anyone other witnesses [sic], apart from Godfrey.

I thought I had let you know about the hearing date. I am sorry if I did not. If there are any problems with the November date you should let me know."

16. At 12.04 of 15 August 2002, the Appellant sent an E-mail to Miss Dandridge in the following terms:

"Following our conversation just now, no formal disinstruction of your firm has been notified to me. To the contrary, this mornings letters from Michael Lloyd makes it clear that David Harties being asked to consider the entire situation including the failure so far to provide a supplemental opinion on even those matters that on cursory reading, I found missing in the counsel's opinion.

Your conversation sounds as if you are prematurely calling a halt to work in progress. I repeat that at this present moment, we should be proceeding towards tribunal deadlines. It is worrying to note that I am now being informed of what is happening to my case.

What work if any has been done towards preparing witness statements?

You informed me that a date was set for the tribunal hearing a while ago.

When was the date set for the tribunal hearing and why was I not been informed at the time?"

17. On 27 August 2002 Miss Dandridge wrote to the Appellant in relation to the monetary aspects of the discrimination claim. The final paragraph of the letter reads:

"At present my instructions from NAHT are not to do any further work to prepare your case for the Tribunal hearing. For the time being, I am still however technically representing you as far as the Tribunal and the Council are concerned, and that will continue until I hear from you or from NAHT further."

18. On 4 September 2002, Thompsons informed the Tribunal (and Ealing) that they were no longer instructed to represent the Appellant in the case. Miss Dandridge also wrote to the Appellant confirming that she had disclosed a medical report from the Appellant's GP to Ealing, and sending the Appellant a copy. She also sent the Appellant copies of the letters she had written to Ealing and the Tribunal advising them that she was no longer representing the Appellant. The letter continues in the following terms:

"As discussed on the telephone, I am happy to meet with you to explain what steps need to be taken regarding the conduct of your case. As things now stand, there is a hearing fixed for 18 November 2002 for 20 days. In terms of deadlines, an outline summary of the arguments that you will be putting has to be disclosed to the Tribunal and to Ealing Council 14 days before the hearing commences. You will also have to liaise with the Council to agree a Chronology of the key dates. Witness statements have to be prepared and exchanged by Monday 23 September 2002, with any Supplementary Statements 4 weeks later. I enclose for your information a copy of the directions given by the Employment Tribunal on 22 March 2002, in which these various directions are set out, together with other Orders which will need to be complied with.

If you feel that you cannot comply with these deadlines, then I suggest that you write to the Tribunal explaining that you are no longer represented and you need more time to prepare. In particular, I recommend that you consider applying to the Tribunal for an adjournment of the November hearing. I cannot guarantee that such an application would be successful, though I would expect in the circumstances that it would be granted.

I would be grateful if you could let me know to whom I should send all the papers relating to your case. You will need these papers in order to prepare the case. Could you please get back to me on this as soon as possible.

In your letter of 28 August 2002, you ask what is the basis of the legal claims that we are making. I am not entirely clear what question you are asking here, but I enclose for your information a copy of your Tribunal Application, our Further Particulars and the revised Schedule of Loss which summarises the amounts claimed and which has been disclosed to the Council and to the Tribunal. This can be amended if you disagree with it. I have not sought any recommendations.

As regard to your personal injury claim, I confirm that I have passed a copy of your letter of 28 August 2002 to Ben McBride for his information."

19. The Appellant then contacted the Commission for Racial Equality (CRE). Their response is dated 12 September 2002. They pointed out that their Legal Committee would consider the Appellant's application for assistance and that the allocated officer Pat Legall-Miller would let the Appellant know "within two - three months" whether or not she would be provided with any assistance in the matter.
20. On 10 September 2002, the Appellant wrote to the Regional Secretary in the following terms:

"I am writing further to the above-mentioned case.

This application has been delayed by circumstances beyond my control namely the failure of my legal representatives to communicate the date of the hearing and their intention to withdraw till last week. Until very recently, a firm of Solicitors, who had been appointed by my Union, was representing me. They have now withdrawn assistance. I have recently been advised that the Hearing is due to take place on 18 November. I do not have a legal representative. If the hearing were to go ahead on that date I would be severely disadvantaged as the case is a complex one.

I have recently re-applied to the Commission for Racial Equality for assistance. A final decision has not yet been made.

In the light of the above, I would be grateful if the Hearing scheduled for 18 November could be postponed. I look forward to your considered attention to my request."

21. On 19 September 2002, the Regional Secretary replied in the following terms:

"The Chairman of the Tribunals (Mr Adamson) has considered the aforementioned letter and has refused your request for a postponement of the hearing on the 18 November to 13 December for the following reasons:-

"Two months is ample time to instruct a new representative. If the Commission of Racial Equality is considering involving itself in this case they should be informed of this application for a postponement and its refusal."

22. The Appellant repeated her request on 21 September 2002, and met with the response on 30 September 2002 that the request had already been dealt with in the previous letter of 19 September.
23. On 1 October 2002, Ealing wrote to the Regional Secretary in relation to the exchange of witness statements, due to take place by 23 September 2002. The author of the letter indicated that she had written to the Appellant on 6 September asking her to confirm that she would be ready to exchange statements by 23 September, and that the Appellant had replied that she was looking to appoint a new representative and would respond once she had done so. On 16 September Ealing had written to the Appellant stating that it would agree only to delay the exchange of statements by one week to 30 September 2002, and that if the Appellant felt she needed further time, she would need to apply to the Tribunal - an application which would be opposed by Ealing. No reply had been received to that letter, although the author of Ealing's letter had seen copies of the Appellant's letter to the Tribunal dated 21 September and the latter's replies.
24. Ealing's letter continued:

"The Respondents are very concerned to avoid any further delay in carrying out the directions as this is a complex case involving a large volume of documentation and large number of witnesses. The Respondents will be severely prejudiced by the failure of the Applicant to exchange statement and agree a bundle as a great deal of preparation time will be required leading up to the hearing date

In the circumstances, the Respondents apply to strike out the originating application for failure to comply with directions given in Rule 4(8)(b)."

25. On 3 October 2002, the Appellant wrote to the Regional Secretary repeating her application for an adjournment of the hearing listed for 18 November 2002. On this occasion the reason she put forward was in the following terms:

"My present request is based on a compassionate circumstance viz the sudden demise of my brother on 1 October 2002 which necessitates some weeks of formal bereavement as he was the eldest in the family. This will clearly affect my ability to instruct solicitors appointed by the CRE in time for the hearing.

I anticipate that the formal period of mourning will be completed by the end of October and for most of that period I will be away from London at the family home.

In our culture there is a tradition requiring myself as a close female relative in supporting the bereaved family during the communal mourning period."

26. On 4 October 2002, the Regional Secretary wrote to the Appellant pursuant to Ealing's request for the application to be struck out for failure to comply with the Tribunal's directions for the exchange of witness statements. The Appellant was told that she was entitled to make representations in writing as to why the Chairman should not exercise this power. She was told that she should write to the Regional Secretary by no later than 18 October 2002.
27. On 8 October 2002 the CRE wrote to the Regional Secretary supporting the Appellant's request for a postponement of the fixed date of 18 November 2002. The CRE pointed out that a final decision regarding the Appellant's application had not been made and could not be made before 26 November 2002, the date of the next meeting of the Legal Committee. The letter also referred to the sudden death of the Appellant's brother on 1 October 2002 and the cultural requirement for there to be a period of mourning.
28. On 8 October 2002 the Regional Secretary reported the Chairman's response to the Appellant's letter of 3 October 2002. The reason given for refusing the adjournment was expressed in these words:

"The interests of justice require the hearing of this case (listed for 20 days) to proceed on 18^th November 2002. Justice delayed is justice denied."

29. On 16 October 2002, the Appellant gave her detailed response to the letter from the Regional Secretary dated 4 October 2002 in relation to the proposed application to strike out the form IT1. The letter is some two and a half pages of A4 typescript. The points which the Appellant makes can be summarised in the following way:

(1) She had been advised that it was not necessary for her to be present at the directions appointment on 22 March 2002, and had received no feedback regarding the outcome of that hearing.

(2) She had had the five meetings with her representative, to which I have already referred, in which she had discussed Ealing's response to the form IT1 and the request for further and better particulars.

(3) She referred to her previous two requests for an adjournment based on the lack of effective representation and her recent family bereavement.

(4) She referred to a number of difficulties in progressing her case and complying with the direction. She is critical of Thompsons for not having properly or sufficiently prepared the case to enable her to comply with the directions ordered on 22 March. As a result she was not in a position to exchange witness statements. She says that despite having furnished Thompsons with a list of twelve possible witnesses, they had not contacted any of them to prepare witness statements and progress the matter forward.

(5) She repeats that she was not aware of the date of the final hearing until 15 August 2002. She referred to the E-mails which I have set out above.

(6) She says she was formally notified on 16 September 2002 by NAHT that Thompsons were withdrawing their representation, and she received the documents file pertaining to her case in early October 2002.

(7) She says that given the complexity of the case and her lack of representation she had made every effort to secure new representation in time for the hearing. She had approached the CRE on 3 September for legal advice and assistance and the matter was due to go before the CRE Committee for "emergency consideration". Until such time as they had responded she could not confirm whether she would have representation on the day of the hearing and whether the case would be ready for litigation.

30. The letter concludes with the following paragraphs:

"When I know of the outcome of my funding application to the CRE I will be in a position with a short extension of time to prepare the requisite documents and to have a working bundle. Given the length of the fixture, it is going to be difficult for any legal advisor from the CRE or otherwise privately instructed to grasp the matter and prepare the documentation in the next few weeks. At this juncture vacating the hearing to a future date would enable justice to be delayed rather than denied.

Whilst the tribunal may strike out whole or part of a case under rules 9(1) or 13(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 for the failure to comply with any requirement under paragraphs (1) or (3), the position I find myself in is outside of my control and in light of the reasons given, I request that the case is not struck out.

The tribunal has a broad discretionary power to adjourn under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 r 13 (7) and in accordance with power conferred under r.13 (7) to tribunals, I would submit that refusal by the tribunal to adjourn would lead effectively to dismissal of the proceedings (where I am not represented) and having regard to my situation/circumstances, the tribunal is requested to consider the injustice caused by such a refusal, Teinaz v Wandsworth LBC [2002] EWCA Civ 1040.

I refer to the principle established by the Court of Appeal in Bache v Essex County Council [2000] 2 All ER 847 in accordance with s.6(1) of the Employment Tribunal Act 1996 which conferred an unqualified statutory right to representation, disempowering an employment tribunal from intervening in a party's choice of representative no matter what the intervention is designed to achieve. The effect of denying me the right to be represented by a person of my choice would leave me without representation.

To allow me representation would entitled me to a fair hearing under Article 6(1) of the European Convention of Human Rights and in accordance with the statement in regulation 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 and the overriding objective of procedural rules, enabling the tribunal to deal with the case justly.

I am therefore writing to request a pre-hearing review in order to address the above issues and ensure just handling of the proceedings in this matter and to seek an adjournment of the hearing. I would want to have a friend to assist me in dealing with the hearing as I have been advised by my GP to avoid stress at the present time."

On 29 October 2002 the Chairman, sitting alone, made an Order striking out the Appellant's claim. The Order reads as follows:

"In exercise of powers conferred on me under Rule 4(8) of the Employment Tribunals Rules of Procedure 2001, I order that the Originating Application be struck out for the Applicant's failure to comply with the Tribunal's Order for exchange of witness statements dated 10 April 2002."

31. The Extended Reasons run to four paragraphs as follows:

"1 On 13 December 2001 the Applicant presented an Originating Application to the Tribunal.

2. By Order dated 10 April 2002 the Applicant was ORDERED, on or before 23 September 2002, to send to the Respondent, by way of exchange, copies of the statements of the witnesses she was intending to call at the hearing, but failed to do so within the time stated.

2. On 4 October 2002 the Applicant was warned that unless written reasons be given within 14 days as to why an Order should not be made a Chairman would consider striking out the Originating Application for non-compliance with the Order.

4. No valid reasons having been provided by the Applicant's letter dated 16 October 2002 in answer to that letter I order that the Originating Application be struck out."

32. The Appellant sought a review of that decision by dint of a letter written to the Regional Secretary on an unspecified date in November 2002. The papers do not reveal what happened to that application.
33. In her Notice of Appeal, the Appellant raises four matters, namely:

(1) breach of Article 6 of the European Convention on Human Rights/natural justice;

(2) failure to give any, or adequate reasons for the decision;

(3) failure to take into account relevant facts or matters;

(4) perversity.

34. Having set out the history which I have already related, the Notice of Appeal amplified the four grounds in the following way:-

"7 The Tribunal breached Article 6 of the ECHR and in particular breached the Applicants right of access to a court in that:

7.1 There was no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

In particular, in striking out the Appellant's Originating Application, the Employment Tribunal took a course of action that was grossly disproportionate to the seriousness of the failure to comply with the Employment Tribunal's order for exchange of witness statements.

7.2 Further, the Tribunal failed to consider whether any alternative steps might have been appropriate in the circumstances, such as:

7.2.1 Extending the date for compliance with the order for exchange of witness statements; or

7.2.2 Ordering costs against the Appellant;

7.2.3 Whether this was a matter where a preliminary hearing should have been ordered in the first instance (as per Martins -v- Marks & Spencer plc (1988) IRLR 326 CA)

Failure to Give Any or Any Adequate Reasons for the Decision

8. The Tribunal failed to give any reasons whatsoever for its decision to exercise its discretion to order that the Appellant's Originating Application be struck out in its entirety, other than the bare fact that the Appellant had failed to comply with the order for exchange of witness statements on or before the 23 September 2002, a fact that merely gives rise to the power to exercise the discretion.

Failure to Take into Account Relevant Facts or Matters

9. The Tribunal failed to take into account any of the reasons put forward by the Appellant for her failure so comply with the order that witness statements be exchanged by the 23 September 2002.

10 The Tribunal failed to consider whether the Respondent had been caused any prejudice by the failure to exchange witness statements by the 23 September 2002. The fact that this date was 8 weeks in advance of the hearing date suggests that there was no prejudice to the Respondent.

Perversity

11 The Appellant relies on the facts and matters set out above in support of the further contention that the order of the Employment Tribunal to strike out the Appellant's Originating Application was perverse."

35. Ealing filed an answer to the Notice of Appeal in which it cast doubt on the Appellant's assertion that she was not informed of the hearing date until 15 August 2002, given the contacts which she had had with her solicitors. Ealing also makes the point that the Appellant made no proposals as to exchange of witness statements prior to the hearing date of 18 November 2002 so as to enable that hearing date to be effective.

The Regulations

36. Rule 4(8) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 provides as follows:

"If a requirement under paragraph (1) or (5) is not complied with, the tribunal -

(a) may make an order in respect of costs under rule 14(1)(a), or

(b) before or at the hearing, may strike out the whole or part of the originating application ……

but a tribunal shall not exercise its powers under this paragraph unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so, or the party has been given an opportunity to show cause orally why the powers conferred by this paragraph should not be exercised."

37. The references to paragraph (1) or (5) refer, so far as (1) is concerned to the following:

"(1) A tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate"

Sub-Rule (5) of Rule 4 relates to the attendance of witnesses and discovery and inspection, which are not material here. The power to strike out is also given by Regulation 15(2)(c) which empowers the Tribunal:-

" …. at any stage of the proceedings, 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.;

(d) …. at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious; and

(e) …. on the application of the respondent, or of its own motion, order an originating application to be struck out for want of prosecution."

The argument for the Appellant

38. The Appellant's Skeleton Argument was settled by Mr Tim Pullen of Counsel, although for reasons of ill-health he was unable to represent the Appellant on the appeal. The argument accepts that Rule 4(8) gives the Tribunal a wide discretion but argues that in determining an application to strike out an Originating Application, the Tribunal must have regard to a number of factors and/or the circumstances surrounding the application. These include the prejudice which will be caused to the respective parties by either dismissing or allowing the application. The overriding consideration, he submitted, is that the Tribunal must consider whether a fair hearing can still take place. The Tribunal should also consider whether there are alternatives to striking the Originating Application out. For this proposition, reliance was placed on the decision of the Court of Appeal in Biguzzi -v- Rank Leisure PLC [1999] 1 WLR 1926
39. The Appellant accepted that the discretion of the Tribunal can only be attacked if relevant matters have not been taken into account, or irrelevant matters have been taken into account, alternatively that the Decision was perverse. The complaint was that there was nothing in the Tribunal's Decision to indicate that it had had regard to any of the factors relevant to its determination, and in particular the overriding factor of whether or not a fair trial was still possible. The Appellant did not abandon a perversity argument. No Tribunal, it was argued could have reached a decision to strike out the Appellant's claim at the stage that it did. As at 29 October 2002, there was still about a month to go before the hearing, and there was fairly little detail, if any, as to what degree of prejudice would have been suffered by Ealing if the time for the exchange of witness statement had had to be extended. Since the case was fully pleaded, it was difficult to see why the situation could not have been retrieved.
40. Accordingly, the Order to strike out was a disproportionate response to the Appellant's non-compliance with the Order for the exchange of witness statement, and, as a consequence, a breach of Article 6(1) of the European Convention on Human Rights.
41. The Appellant advanced a number of arguments in support of her proposition that the Tribunal had failed to give adequate reasons for its decision as per Meek -v- City of Birmingham District Council [1987] IRLR 250, CA. The Appellant relied on the matters which she had set out in detail in correspondence to the Tribunal, including her wish to be represented by the CRE and the death of her brother. The Appellant pointed out that Rule 12(3) of the Rules requires a Tribunal to give reasons for its decision. That decision had to contain at least an outline of its basic factual conclusions, and sufficient reasoning to enable the Appellant to be able to tell why she had won or lost, or whether any error of law arose. The Appellant complained that in the instant case, the Decision was contained in a single short paragraph - namely (4) of the Reason which I have reproduced at paragraph 35 of this judgment. The Appellant complained that the Decision contained no reasoning whatsoever, nor any account of the facts. The Appellant was simply unable to tell why the Tribunal had rejected the reasons she put forward in her letter of 16 October for non-compliance.
42. Finally, the Appellant complained that it was impossible to ascertain what factors or circumstances the Tribunal had had regard to, for example, whether it had considered any alternative to striking out her claims and whether it had considered any prejudice to the parties - importantly - whether it had addressed its mind to the question of whether a fair hearing was still possible, and, if not, why not. In these circumstances, the EAT invited the EAT to allow the appeal and remit the application to a different Chairman for reconsideration.

The argument for Ealing

43. Mr Gallivan asserted firstly that for the purposes of the appeal, the Appellant was not entitled to disown the conduct of her case by her former solicitors. In law, he argued, their actions were her actions, and their knowledge was her knowledge. In this respect, he relied (inter alia) on Daryanani -v- Gerrey CA (unreported 12 December 2002). He argued that the Tribunal's discretion was sufficiently wide to include a case management decision of the nature taken by the Tribunal in the instant case, and that the EAT was only entitled to interfere, if it could be shown that the Tribunal had exercised its power in some way which contravened relevant principles.
44. Mr Gallivan submitted that the correct approach was to conduct a balancing exercise, weighing the consequences of default against the consequences of possible sanctions in default. An Appellate Court could only overturn the Tribunal's decision if, on the material before it, there had been an apparent misdirection.
45. Mr Gallivan submitted that there had been no such misdirection in the instant case. There had been a flagrant and prolonged disobedience to the Order to exchange witness statements, rendering a fair hearing of the case, commencing on 18 November 2002 impossible. The consequences of the Appellant's disobedience to the Order for the exchange of witness statements was to procure an adjournment of the hearing in circumstances where she had twice applied for, and been refused, such adjournment on grounds of which no complaint was or could be made. Accordingly, the Tribunal had correctly decided that an adjournment of the hearing would not be in the interests of justice, which included the public interest in the proper and efficient use of scarce resources.
46. Mr Gallivan further submitted that the material disclosed by the Appellant made it clear that she could indeed have complied with the Order for the exchange of witness statements - at any rate by 29 October 2002 - since it appeared that the only witnesses were herself and one Godfrey Cremer.
47. Mr Gallivan also referred to the gravity of the subject matter and submitted that this required the Appellant's complaints, in the interests of justice, to be resolved at the earliest date consistent with a fair opportunity to prepare for the hearing. Given the length of the prospective hearing, an adjournment from 18 November 2002 would have delayed the matter for many months.
48. On the Reasons, Mr Gallivan submitted that the Tribunal had plainly taken into account what the Appellant had argued but had simply rejected it as invalid. In short, the Tribunal had exercised a wide discretion perfectly appropriately, and the EAT should not interfere.

Supplementary points

49. The Appellant sought to argue that the Tribunal in the instant case should have conducted an oral hearing: see Martins -v- Marks & Spencer PLC [1998] IRLR 326 at paragraphs 59 and 60. I reject that argument. In my judgment, the Tribunal was fully entitled to deal with this matter on the papers. Nothing of any materiality could, it seemed to me, have been added by an oral hearing, save perhaps a testing of the Appellant's credibility in relation to her knowledge of the relevant dates. That matter does not, however, appear to have formed any part of the Chairman's thinking.
50. Mr Gallivan raised with me the possibility that if I were concerned about the Tribunal's reasoning, I could refer the matter back to the Chairman for him to clarify his reasoning process "with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings" as per the decision of the Court of Appeal in English -v- Emery Reinbold & Strick Ltd [2002] 3 All ER 526, at paragraph 25.
51. I do not think that course appropriate in the instant case. The English -v- Emery Reinbold approach arose on an application for permission to appeal, and although there may well be cases in which it might save time and costs for the matter to be remitted in this way (for example where the Court is minded to direct a preliminary hearing) that approach does not seem to me appropriate in the instant case where the matter has been directed to be heard inter partes as a full appeal, and where the argument is - in effect - that no reasons of any kind have been given.

Discussion

52. In my judgment, the decision whether or not to strike out in the instant case is a finely balanced one, and one in relation to which there are powerfully competing factors on each side. On the one side, there is the undoubted right of the Tribunal to regulate its own affairs and to make robust case management decisions. Coupled with this is the fact that this case was allocated a very substantial part of the Tribunal's resources (twenty working days) and that the Tribunal had, at the very outset, made it clear that the time limits were to be obeyed and that the hearing date was only to be vacated "in the most exceptional and extenuating circumstances".
53. On the other side of the equation is the undoubted fact that the Appellant, if the Order stands, will be prejudiced by her inability to place her case before a Tribunal with jurisdiction to adjudicate upon it. There is no real evidence, it seems to me, on the papers that an adjournment would have unduly prejudiced Ealing which plainly had its tackle in order, and was ready to go. The Appellant advanced a number of reasons why she was in difficulties. No doubt an adjournment would have involved a substantial re-organisation of Tribunal time, but on the face of the documentation presented to me, there seems no real reason put forward why a hearing could not have proceeded, albeit not starting in November 2002.
54. In these circumstances, and given the nature of the competing arguments, I have to say that it seems to me the Chairman does not give adequate reasons for his decision. He does not seem to me to weigh the competing factors. I have no real idea of his reasoning process except that he did not think any of the reasons put forward by the Appellant are valid. He does not explain why he takes this view, or why the reasons are invalid.
55. I quite appreciate that there will be circumstances in which, given the overall knowledge of the case by the Tribunal, given the nature of the default, and given the history of the matter, terse reasons - even comprising only a sentence or two or a paragraph - will be sufficient to dispose properly of such an application. But where so much is at stake, and where so many factors need appropriately to be balanced, it seems to me, I have to say, quite inadequate for the application to strike out to succeed with the Chairman simply saying that "no valid reasons" had been provided by the Appellant. The Chairman does not deal with the questions of prejudice; he does not deal with the question of a fair trial; he does not consider alternatives to the application being struck out. Furthermore, he balances none of the arguments. He simply states that "no valid reasons" had been given.
56. It is often said, in relation to Meek, that the Appellant is entitled to know why she lost. Mr Gallivan, in the instant case, says that she lost because in all the circumstances of the case well known to her and to the Tribunal, she failed to put forward any good reason why the claim should not be struck out. But, with great respect, that argument seems to me simplistic. In my judgment, the Appellant is entitled to ask: "why were the reasons I put forward rejected? Why were they invalid?" In my judgment, in a case such as the present, where so much is at stake, it is not sufficient simply to say that the reasons were invalid simpliciter. The Tribunal needs to explain why that was.
57. In these circumstances, and whilst recognising the width of the Chairman's discretion, I have come to the clear conclusion that the Decision is defective in that it does not give adequate reasons for the conclusion which the Tribunal reached: that inadequacy in my judgment vitiates the Decision which must, accordingly, be set aside.
58. It would be quite impossible for me to substitute my view of the question, and Counsel for the Appellant does not ask me to do so. He invites to remit the matter to a different Chairman for re-consideration. In my judgment, that is the right course, and that will be my order. The form which the re-hearing takes will, of course, be a matter for the Chairman. I indicated in paragraph 53 that I did not think that it was an error of law that the Chairman making the decision under appeal did not hold an oral hearing. The Chairman to whom the re-hearing is allocated may wish, however, to re-consider the point and hear oral argument from both sides.

The result

59. The appeal will be allowed. The order of 29 October 2002 striking out the Appellant's claim will be set aside and Ealing's application to strike out the Appellant's claim will be remitted for a fresh hearing before a different Chairman.