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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bone v. Fabcon Projects Ltd [2006] UKEAT 0079_06_0707 (7 July 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0079_06_0707.html Cite as: [2006] UKEAT 0079_06_0707, [2006] IRLR 908, [2006] UKEAT 79_6_707, [2006] ICR 1421

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APPEARANCES

 

For the Appellant	Mr T VACHAVIOLOS (Solicitor) Hatch Brenner Solicitors 4 Theatre Street Norwich NR2 1QY
For the Respondent	MR J SHARMAN Atlantic Management Consultancy 14 Broadhurst Road Easton Rise Norwich Norfolk NR4 6RD

SUMMARY

The Claimant sought a default judgment because the Respondent's response was not presented within 28 days of the sending of the claim to the Respondent by the Tribunal. The Tribunal held that time ran from receipt; the claimant's case that the Respondent had received the papers as originally sent was rejected; the Tribunal accepted that they had not been received. The Claimant appealed.

Held (1) Rules 2 and 4 had the effect that time for presentation of a response runs from sending, not from receipt.

(2) The Tribunal erred in resending the papers which had not been received.

(3) But a Respondent who did not receive the papers had to be entitled to seek relief from the effects of Rule 9 and Rule 8 and could do so by seeking a review under Rule 34(1)(a) and (3)(b) and (e).

(4) The case must be formally remitted to the Tribunal to hold such a review hearing.


 


HIS HONOUR JUDGE BURKE QC

The Appeal

1. This is an appeal by the Claimant, Mr Bone, against a decision made at a pre-hearing review by Mr Ash, Chairman of the Employment Tribunal, sitting alone at Norwich, sent with written reasons to the parties on 24 October 2005.
2. At that pre-trial review the Claimant sought from the Tribunal a default Judgment under Rule 8 of Schedule 1 to the Employment Tribunal (Constitution and Procedure) Regulations 2004 ("The Rules"), on the grounds that the Respondent, Fabcon Projects Ltd ("Fabcon"), had not presented a response to his claim within the relevant time limit. Fabcon's case was that they had presented their response in time.
3. The reader of this Judgment might be forgiven for thinking that the resolution of a mundane and supposedly simple issue of that nature would be straightforward; but he or she would be wrong. The Chairman resolved the issue in favour of Fabcon. It is that decision which is challenged in this appeal, as having been reached in error of law. In order to see whether that decision was or was not made in error of law, it will be necessary to consider the facts and then the law, and in particular the 2004 Rules, in some detail.

The History

4. Mr Bone was employed as a site manager/supervisor by Fabcon from 1997 until 19 February 2005. He resigned on that date and claimed in his claim form, presented by his solicitors to the Tribunal on 18 May 2005, that he had been constructively and unfairly dismissed. It is Fabcon's case that they were not guilty of any breach of contract and that Mr Bone voluntarily resigned.
5. On the same day, 18 May, the Tribunal by letter acknowledged to Mr Bone's solicitors receipt and acceptance of the claim; they said in that letter that a copy of the claim had been sent to Fabcon and to ACAS. Rule 2(2)(a) of the 2004 Rules requires the Tribunal to send a copy of a claim which has been accepted or partly accepted to each Respondent and to record in writing the date on which it was sent. Rule 2(2)(c) required the Tribunal to inform Fabcon about how to present a response, the time limit for doing so and what might happen if a response was not entered within the time limit; and normally a standard letter is sent to a Respondent in compliance with those requirements immediately on acceptance of a claim or part of a claim; that letter is normally accompanied by a blank response form and an explanatory booklet. The Tribunal's letter to Mr Bone's solicitors of 18 May informed them that this had been done.
6. It is not in dispute that, again as is the normal practice, ACAS were informed of the claim and that there was a conversation between ACAS and Mr Andrew Peek, Fabcon's Managing Director, about it, as a result of which Mr Peek rang Mr Bone and spoke to him. In his witness statement prepared for the hearing before the Chairman, Mr Peek said that he did not tell Mr Bone in that conversation that he had received "the claim papers" and that at that stage such papers had not been received. According to Mr Bone's case, it could be inferred from that conversation that Mr Peek knew that Fabcon had received those papers.
7. It was Fabcon's case that, although Mr Peek had spoken both to ACAS and Mr Bone, they did not receive any communication from the Tribunal. Mr Peek's account was that he subsequently received another telephone call from ACAS from which he learnt that a response should have been received and completed. It is not in dispute that, on 17 June, Fabcon wrote to the Tribunal, stating that they had not received the relevant papers. On 23 June the Tribunal wrote back to Fabcon in these terms:-

"Thank you for your letter received on 17 June 2005.

This has been referred to a Chairman of the Tribunals (Mr. C Ash) who has directed me to reply to you as follows:

Your request for the claim form in this case to be re-sent has been agreed, enclosed are the relevant papers to enable you to respond to this claim."

The Tribunal sent a copy of this letter to Mr Bone's solicitors and to ACAS.

8. Fabcon did receive the papers sent on 23 June and put in a response dated 19 July. It is clear from that response that there is a deep dispute between the parties as to the facts which led to and as to the reasons for the termination of Mr Bone's employment.
9. Mr Bone's solicitors took the view that, pursuant to the Rules, Fabcon had been required to respond within 28 days of the date on which a copy of the claim was sent to them in compliance with rule 2(2)(a) or, within that time, to seek an extension of time for presentation of their response, that Fabcon had done neither and that therefore, Mr Bone was entitled to a default Judgment under rule 8 (2) (a). They therefore applied for such a Judgment. The Tribunal responded on 10 August 2005 in these terms:-

"I write further to our letters dated 7 July 2005 and 19 July 2005.

These have been referred to a Chairman of the Tribunals (Mr. C Ash) who has directed me to reply to you as follows:

This case will now be listed for a Pre-Hearing Review with a time estimate of 1¹/₂ hours to determine whether the ET3 was properly served in accordance with the Employment Tribunals Rules of Procedure."

The Tribunal Hearing and Decision

10. At the hearing, Mr Bone was represented, as he has been before me, by his solicitor, Mr Vachaviolos; and Fabcon were represented, also as before me, by Mr Sharman, a consultant. Both Mr Bone and Mr Peek put in witness statements. Mr Bone's witness statement dealt only with his conversation with Mr Peek on 23 May 2005. Mr Peek's witness statement set out that the papers sent by the Tribunal in May had not been received and went on to deal with his conversations with Mr Bone and with ACAS. He said that it was in a second telephone call from ACAS that he learnt that he should have received papers from the Tribunal and that he needed to put in a response; he said that he had accordingly communicated with the Tribunal and subsequently received the second set of papers. Not surprisingly, Mr Bone did not put in any evidence that the first set of papers had been received by Fabcon, other than his conversation with Mr Peek. Mr Bone gave evidence at the hearing; however, at the end of his cross-examination, it was clear that Mr Bone had only assumed from what Mr Peek had said that Fabcon had received the necessary papers. The Chairman, at paragraphs 2 and 3 of his Judgment, said:-

" 2 It is the claimant's case that default judgment should be entered because he believed from his telephone conversation that Mr Peek was in receipt of the ET1.

3 However, having heard Mr Bone's evidence, which I accept, I am satisfied that the telephone conversation he had with Mr Peak is consistent with the latter receiving a notification from ACAS that his claim had been brought and was not of itself indicative of receipt of the ET1."

Because, at the end of Mr Bone's evidence, it was clear that had been no acknowledgment by Mr Peek in that conversation of receipt of the necessary papers by Fabcon, Mr Sharman regarded it as unnecessary to call Mr Peek.

11. The Chairman then went on to consider Mr Vachaviolos's argument that, irrespective of any such conversation, the Tribunal had sent the claim to Fabcon, who, whether they received it or not, had not put in a response within the time limit and that, therefore, Mr Bone was entitled to a default Judgment. The Chairman rejected that argument; he held that time for presentation of the response does not begin to run until the Respondent has received a copy of the claim form. His conclusion and his reasons for that conclusion are set out at paragraphs 5 to 7 of his Judgment as follows:-

" 5 In my view that is not a correct statement of the law. I interpret Rule 4 of Schedule 1 of the Rules of Procedure as meaning that the respondent has 28 days to enter a defence to a claim after receipt of the Claim Form. I appreciate the actual the Rule as worded says "was sent a copy".

6 Such an interpretation offends all notions of natural justice. If it is the correct interpretation I would have given leave for a review, and almost certainly have granted review of any default or other judgement entered on the basis that an ET3 had not been entered in time.

7 Thus I rule that the Claim Form was not received by the respondent, that the papers were correctly re-served and that an ET3 was presented within 28 days of that re-service."

12. Having thus rejected the application for a default Judgment, the Chairman then proceeded to give directions for trial; but no trial has yet taken place, pending the result of this appeal.

The Submissions

13. Mr Bone now appeals against the Chairman's rejection of his application. Mr Vachaviolos's argument is that the necessary papers were sent to Fabcon on 18 May by the Tribunal and that, on the correct construction of the relevant Rules, Fabcon were obliged to present a response within 28 days, whether or not the papers sent to them were actually received, and that Fabcon failed to do so or to seek an extension of time within the same 28 day period. Mr Vachaviolos relies on the words of Rule 4 (1), namely:-

"4 Responding to the claim

(1) If the respondent wishes to respond to the claim made against him he must present his response to the Employment Tribunal Office within 28 days of the date on which he was sent a copy of the claim. The response must include all the relevant required information. The time limit for the respondent to present his response may be extended in accordance with paragraph (4)."

He submits that those words mean no more and no less than what they plainly say; once the Tribunal have sent a copy of the claim to a Respondent, the Respondent has 28 days in which to present a response, irrespective of receipt or non-receipt by him, unless he applies for an extension of time pursuant to Rule 4 (4).

14. Rule 4 (4) provides:-

"(4) The respondent may apply under rule 11 for an extension of the time limit within which he is to present his response. The application must be presented to the Employment Tribunal Office within 28 days of the date on which the respondent was sent a copy of the claim (unless the application is made under rule 33(1)) and must explain why the respondent cannot comply with the time limit. Subject to rule 33, the chairman shall only extend the time within which a response may be presented if he is satisfied that it is just and equitable to do so."

In this case, Mr Vachaviolos submitted, Fabcon had not made any application for an extension of time within the 28 days period; even if their request to the Tribunal that they should be re-sent the papers could be regarded as such an application, it was made outside the relevant 28 days period; rule 33(1), which relates to the setting aside of a default Judgment did not apply; no valid extension of time could have been granted.

15. Accordingly, Mr Vachaviolos's argument went, no response had been presented in time; Fabcon were, by rule 9, not permitted to take any further part in the proceedings (save for the purposes specifically set out in that rule) and Mr Bone was entitled to a default Judgment under rule 8(2)(a). He made the point that while under the predecessors of the 2004 Rules, time ran against a Respondent from the date of receipt of the originating application (see e.g. rule 3(1) of Schedule 1 to the Employment Tribunals (Constitution and Procedure) Regulations 2001), so that a Respondent had 21 days in which to present his response from his receipt of a copy of the originating application, under the new 2004 Rules time runs from sending of that document, irrespective of receipt. Mr Vachaviolos submitted that his point was not merely technical; if, which he did not accept, Fabcon did not receive the document sent by the Tribunal on 18 May, they ought, as a result of Mr Peek's conversations with ACAS and Mr Bone, to have made enquiries of the Tribunal and discovered in time and not too late, as in fact happened, that papers ought to have been received from the Tribunal and of the need to put in a response. Thus, it was submitted, Fabcon were not entitled to any indulgence.
16. Mr Vachaviolos further submitted that, in any event, the Chairman was not entitled to conclude as he did that Fabcon had not received the original papers from the Tribunal because Mr Peek was not called to give evidence and Mr Vachaviolos had not had the opportunity to cross-examine him and to challenge his assertion in his witness statement that no such receipt had occurred.
17. Mr Sharman submitted on behalf of Fabcon that:-

(1) The application for a default Judgment was founded on Mr Bone's contention that Mr Peek had in effect admitted receipt of the papers said to have been sent to Fabcon by the Tribunal on 18 May but that foundation had been destroyed by the end of Mr Bone's evidence.

(2) As a result of (1), he decided that there was no need to call Mr Peek; the attempt to undermine the validity of the response submitted by Fabcon on 19 July appeared to have failed. Mr Vachaviolos had not asked that Mr Peek be called so that he could be cross-examined.

(3) There was no evidence that Mr Peek's conversation with ACAS or Mr Bone informed him that the Tribunal had sent the documents to Fabcon.

(4) There was no evidence that such documents had either been sent to Fabcon on 18 May or received by Fabcon.

(5) Accordingly, the Chairman's decision on the law was correct and his factual conclusions were conclusions which were open to him on the evidence; as to the law, a Respondent cannot respond to documents which he has not received.

(6) Neither rule 8 nor rule 9 applied in the circumstances; the response which the Tribunal had accepted had been validly presented and was effective.

(7) Even if the Chairman's construction of rule 4 was in error, he had a general discretion under rule 10 to extend time for the presentation of a response and by ordering that the relevant documents be re-sent to Fabcon on 22 June, the Tribunal must be taken to have exercised such a discretion.

Were the documents sent to Fabcon on 18 May?

18. At the sift stage of this appeal, on 21 December 2005, HHJ McMullen QC stayed the appeal pending an answer from the Tribunal to the question "on what date was the claim sent to the Respondent?" On 12 January 2006 the Chairman replied as follows:-

"I am asked to state the date the claim was sent to the respondent. The file record shows 18 May 2005. that date was not in dispute. Further, it was not a matter of evidence; neither Mr Bone nor Mr Peek would know. Mr Peek did not receive it."

19. Mr Sharman accepted that neither Fabcon nor Mr Peek knew or could have known whether the relevant documents had been sent to Fabcon by the Tribunal prior to 23 June. He did not, however, agree that there was no issue as to the sending on 18 May. The bundle before me at the hearing included, as I have indicated earlier, a copy of the letter from the Tribunal to Mr Bone's solicitors dated 18 May informing them that the relevant documents had been sent to Fabcon; but there was no copy of any letter from the Tribunal to Fabcon of 18 May or any adjacent date; and there was no copy of any file record kept by the Tribunal of any sending on or about 18 May. It seemed that, at the hearing before the Chairman, no-one had investigated the existence or non-existence of any such documents. The Chairman may well have assumed that there had been such a sending because of the letter of 18 May to Mr Bone's solicitors; but the fact that the Tribunal had sent that letter to one party did not necessarily mean that the Tribunal had in fact carried out the task of sending out the relevant documents to the other, albeit that the letter to Mr Bone's solicitors said that they had done so; furthermore, by the date of the hearing before me, nobody had enquired further into this important question. It appeared to me that it was necessary that there should be some determination as to whether the relevant documents had been sent to Fabcon on or around 18 May; if there was nothing on the Tribunal's file indicating such a sending, (1) the explanation for Fabcon's non-receipt of those documents would appear to lie in an error on the part of the Tribunal, and (2) it would be unnecessary to consider the arguments as to the proper construction of rule 4 or, indeed, the other arguments put forward by the parties any further – for, in the absence of any sending on or about 18 May, the sending on 23 June was the only sending, Fabcon's response was in time and no default Judgment could have been entered.
20. Before such a determination could be reached, however, it was of course necessary to discover whether there was any material on the file of the Tribunal which evidenced a sending on or about 18 May and supported what had been set out by the Chairman in his letter of 12 January 2006; and the parties, with sensible pragmatism, agreed that, rather than remitting this issue of fact to the Tribunal, with the potential effect that, if it was determined that there had been such a sending, this appeal would then have to be restored, I should determine whether there had been such a sending and that, in order to do so, I should direct a further question to the Tribunal, asking what material was on the Tribunal's file which evidenced such a sending. I agreed to send to the parties the Tribunal's answer and to give them an opportunity to make further submissions to me in writing in the light of such answer.
21. The Chairman replied to that question on 29 May 2006 by enclosing a copy letter of 18 May 2005 from the Tribunal to Fabcon which stated that a copy of the claim, the explanatory booklet and a blank response form were enclosed and which informed Fabcon of the time limit for presentation of their response. I should add that Mr Vachaviolos had, separately, obtained a copy of that letter from the Tribunal and sent a further copy to me. At the hearing of the appeal, Mr Sharman accepted that, if such a letter were produced by the Tribunal, he would have difficulty in maintaining that the relevant documents were not sent on 18 May; and in his further submissions made in the light of the Tribunal's production of a copy of a letter of 18 May to Fabcon, he accepted that that copy was "prima facie" evidence that the relevant documents were so sent.
22. The Chairman did not sent any other document which constituted a record in writing of the date on which a copy of the claim was sent to Fabcon (as required by rule 2(2)(a)); but it has not been suggested that the retention by the Tribunal of a copy of their letter of 18 May to Fabcon is not sufficient to constitute a written record of the date on which the relevant papers were sent in compliance with that rule; and in my view there has been sufficient compliance with that obligation.
23. In my judgment, in the light of the copy letter now disclosed by the Tribunal but not in the original bundle, it is highly probable that the relevant documents were sent to Fabcon on 18 May, by post in compliance with rule 61(1)(a).
24. For these reasons I conclude that there was on 18 May compliance by the Tribunal with rule 2(2)(a); the relevant documents were sent to Fabcon on that day.
25. For the sake of completeness, I should mention that, in his further submissions, Mr Sharman pointed out that Fabcon's address in the letter of 18 May is given as 1, 2, 3 Delta Close, Norwich, Norfolk, NR6 6BG when it should have been Units 1, 2, 3, etc; but the address used is that on the claim form and was, therefore, the appropriate address; see rule 61(4)(h)(i). In any event the difference is of no significance.

Does "sent" mean "received"?

26. The Chairman took the view that to construe the words of rule 4(1) of the 2004 Rules literally, with the effect that time for the presentation of a response begins to run when a copy of the claim is sent to a Respondent irrespective of its receipt by the Respondent, offended "all notions of natural justice". For that reason, he interpreted that rule as providing a Respondent with 28 days from receipt of his copy of the claim in which to present his response. It is difficult not to have sympathy with the Chairman's bold but attractive route to the achievement of justice; Regulation 3(1) of the 2004 Regulations states unequivocally that the purpose of the Rules is to enable Tribunals and Chairmen to deal with cases justly.
27. However, in my judgment, the achievement of justice in this case cannot properly be found by the route chosen by the Chairman. Reluctantly, I have come to the conclusion that it is not possible to ignore the contrast between the words of rule 3(1) of the 2001 Rules, which expressly provided that time for the presentation of a response should begin to run from receipt of the originating application, and rule 4(1) of the 2004 Rules which appears to have been deliberately drafted so that time for a response would run from sending of and not receipt of the claim form. Why the rule makers wished to make that change does not appear from the Rules themselves; but on any ordinary canon of construction it is not, in my judgment, possible to construe the words "was sent" in rule 4(1) as meaning "was received".
28. If the Rules never used the words "received" or a kindred word in relation to a document sent by the Tribunal, it might perhaps be possible to construe "was sent" as meaning "was effectively sent" or "sent so that reached its destination"; but, as an analysis of the relevant rules as a whole shows, that is not the position. Rule 34(3)(b) provides that a decision may be reviewed if a party "did not receive notice of the proceedings leading to the decision"; and rule 61(1) provides:-

"61 Notices, etc

(1) Any notice given or document sent under these rules shall (unless a chairman or tribunal orders otherwise) be in writing and may be given or sent-

(a) by post;

(b) by fax or other means of electronic communication; or

(c) personal delivery."

But in contrast, rule 61 (2) provides:-

" (2) Where a notice or document has been given or sent in accordance with paragraph (1), that notice or document shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed…"

29. These rules specifically and the rules taken as a whole appear to me to show a clear distinction within the rules between sending on the one hand and receipt on the other hand of documents from the Tribunal. Considering the rules as a whole, together with the contrast between the words of the current rule 4(1) and its predecessor in the 2001 rules, despite the obvious difficulties which such a construction creates – as vividly exemplified by this case – the Chairman's construction was wrong; time to present a response pursuant to rule 4(1) runs from the sending to and not from the receipt by a Respondent of the relevant documents.

The consequences of the correct construction

30. In order to consider the consequences which may flow from the absence of a timorous response and the routes by which relief from those consequences can potentially be obtained in a case such as this, it is necessary first to set out the relevant Rules, of which there are many.
31. The relevant parts of rules 2 and 4 have been set out above.
32. Rule 6 provides as follows:-

"6 When the response will not be accepted by the Secretary

(8) Where a response is required to be presented using a prescribed form by rule 4(2), but the prescribed form has not been used, the Secretary shall not accept the response and shall return it to the respondent with an explanation of why the response has been rejected and provide a prescribed response form.

(2) The Secretary shall not accept the response if it is clear to him that any of the following circumstances apply-

1. the response does not include all the required information (defined in rule 4(3):

2. the response has not been presented within the relevant time limit.

(3) If the Secretary decides not to accept a response for either of the reasons in paragraph (2), he shall refer the response together with a statement of his reasons for not accepting the response to a chairman. The chairman shall decide in accordance with the criteria in paragraph (2) whether the response should be accepted.

(4) If the chairman decides that the response should be accepted he shall inform the Secretary in writing and the Secretary shall accept the response and then deal with it in accordance with rule 5(2).

(5) If the chairman decides that the response should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall inform both the claimant and the respondent of that decision and the reasons for it. The Secretary shall also inform the respondent of the consequences for the respondent of that decision and how it may be reviewed or appealed.

(6) Any decision by a chairman not to accept a response may be reviewed in accordance with rules 34 to 36. If the result of such a review is that the response should have been accepted, then the Secretary shall accept the response and proceed to deal with the response as described in rule 5(2)."

33. Rule 8, insofar as relevant, provides as follows:-

"8 Default judgments

(1) In any proceedings if the relevant time limit for presenting a response has passed, a chairman may, in the circumstances listed in paragraph (2), issue a default judgment to determine the claim without a hearing if he considers it appropriate to do so.

(2) Those circumstances are when either-

1. no response I those proceedings has been presented to the Employment Tribunal Office within the relevant time limit;

(5) The claimant or respondent may apply to have the default judgment reviewed in accordance with rule 22."

34. Rule 9 provides as follows:-

"9 Taking no further part in the proceedings

A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to-

(a) make an application under rule 33 (review of default judgments);

(b) make an application under rule 35 (preliminary consideration of application for review) in respect of rule [rule 34(a), (b) or (e)];

(c) be called as a witness by another person; or

(d) be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37;

and in these rules the word "party" or "respondent" includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes."

35. Rule 10, insofar as relevant, provides as follows:-

"10 General power to manage proceedings

(1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of "hearing").

(2) Examples of orders which may be made under paragraph (1) are orders-…

(e) extending any time limit, whether or not expired (subject to rules 4(4)… of this Schedule…"

36. Rule 33 provides, so far as relevant:-

"33 Review of default judgments

(1) A party may apply to have a default judgment against or in favour of him reviewed. An application must be made in writing and presented to the Employment Tribunal Office within 14 days of the date on which the default judgment 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.

(2) The application must state the reasons why the default judgment should be varied or revoked. When it is the respondent applying to have the default judgment reviewed, the application must include with it the respondent's proposed response to the claim, an application for an extension of the time limit for presenting the response and explanation of why rules 4(1) and (4) were not complied with.

(6) In considering the application for a review of a default judgment the chairman must have regard to whether there was a good reason for the response not having been presented within the applicable time limit."

37. Rule 34 provides, is so far as relevant:-

"34 Review of other judgments and decisions

(1) Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. those judgments and decisions are-

1. a decision not to accept a claim, response or counterclaim;

2. a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs);

(3) Subject to paragraph (4), decision may be reviewed on the following grounds only-

(b) a party did not receive notice of the proceedings leading to the decision;

(e) the interests of justice require such a review."

38. Finally, rule 35(1) provides:-

"35 Preliminary consideration of application for review

(1) An application under rule 34 to have a decision reviewed must be made to the Employment Tribunal Office within 14 days of the date on 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."

39. Where a Respondent fails to present a response within the time limit set out in rule 4(1) or any extended period obtained within that time limit pursuant to rule 4(4) a Chairman may – it seems either on application or of his own motion – issue a default Judgment pursuant to rule 8(1) and (2)(a). If such a Judgment is issued, it has to be sent to the parties; assuming it reaches the Respondent, he will be able, pursuant to rule 8(5) to apply under rule 33 to have the default Judgment revoked; such an application must include an application for an extension of the time limit for presenting a response and an explanation why rule 4(1) and (4) were not complied with; see rules 33 (1) and (2). The Employment Appeal Tribunal (EAT) so decided in Moroak v Cromie [2005] IRLR 535; see the Judgment of Burton P at paragraph 15.
40. However, as Burton P went on to point out at paragraph 16 of that Judgment, the issuing of a default Judgment is discretionary; and unless the Claimant seeks such a Judgment, it may well never be issued. But, in the absence of a default Judgment, a Respondent who has not presented a response within the time limit or whose response has not been accepted is, pursuant to rule 9, not entitled to take any part in the proceedings save for the limited purposes set out in that rule. As the EAT decided in Butlins Skyline v Beynon (EAT 0042-5/06 20 February 2006), no act on the part either of the claimant or of the Tribunal is required to set rule 9 in motion; its effect appears to be automatic. A Respondent who has not presented a response in time is, from the expiry of the time limit or any extended time limit, subject to rule 9 and thereby disentitled from playing any part in the proceedings other than as expressly permitted by rule 9, even if the Respondent has not presented a response in time because the necessary papers, albeit properly sent to him, never reached him. If a default Judgment has been issued, such a Respondent, when he learns of that Judgment, may use the rule 33 procedure which I have just described; but that procedure is not open in the absence of a default Judgment. On the face of it, a Respondent in that position, albeit blameless, is in the same situation as a Respondent who has overlooked the time limit or chosen not to put in a response and then had second thoughts.
41. The situation thus produced was, at least in part, expressly considered in Moroak. In that case, the employment consultant acting for the Respondent presented the response 44 minutes late because, just before midnight on the last day for presentation of the response, he suffered a computer breakdown. In a letter sent two days later to the Tribunal he explained the reason for the delay and sought an extension of time for presenting his response or an order that the response sent should be treated as having been presented in time. The Tribunal replied that the response was late and could not be accepted and therefore the Respondent could take no part in the proceedings but could apply for a review. No default Judgment was issued. The EAT held, at paragraphs 16– 28, that the Tribunal had refused to accept the response put forward out of time, that that refusal was reviewable under rules 6(6), 34(1)(a) and 34(3)(b) and that, upon such a review, the Tribunal had the power to exercise a discretion to allow the Respondent's late response to stand, albeit presented out of time, if it was just and equitable to do so. The principles on which such a discretion should be exercised should be those set out in Kwik-Save Stores Ltd v Swan [1997] ICR 44; see also Pendragon v Copas (EAT/0317/05 11 July 2005, a case on review under rule 33, in particular at paragraph 20).
42. I respectfully agree with the views expressed by Burton P in Moroak. The facts of this case are, however, rather different; this is not a case in which the Respondent presented a response which was not accepted and which on review the Tribunal had a broad discretion to accept out of time; it is a case in which Fabcon did not, or at least claimed that they did not, receive the claim form and other papers at all within the time limit for presentation of a response but then put in a response well outside the time limit which began with the original sending, which was purportedly accepted after the relevant papers were re-sent. In this case the Tribunal has proceeded on the basis that there is a valid response; and it is the Claimant who seeks a default Judgment on the basis that there is not, that rule 9 applies and that rule 8(2)(a) also applies.
43. I have already set out my decision that the relevant papers were properly sent to Fabcon and that, accordingly, time started to run against Fabcon from the date of that sending. The response was not presented within the time limit, namely 28 days from 18 May 2005; and rule 9 automatically applies. I can see no lawful basis, in the circumstances of this case, for the re-sending of the relevant papers. There is no express power in the Rules for the papers to be re-sent; to do so at the request of a Respondent and without a hearing would, if the 28 days for presentation of the response were to start again from the date of the re-sending, have the effect of granting an extension to the time limit specified by rule 4(1) (a) on a unilateral basis and (b) when, on the facts of this case, no application for an extension was made within the time laid down by rule 4(4). Such a course of action on the part of the Tribunal might be wholly unfair to a Claimant, for example in a case in which a Respondent falsely said that he had not received the papers when he had received them and had inexcusably delayed his response. The step which the Tribunal ought, in my judgment, to have taken in the light of Fabcon's informing the Tribunal that they had not received the papers originally sent, was to indicate that the time limit for presenting a response had passed and that rule 9 now applied; the response, out of time, ought to have been rejected.
44. That would not, however, have left Fabcon without a remedy. As Burton P pointed out in Moroak at paragraphs 17 and 18, a Respondent in that position cannot be left in limbo but must be able to seek a review under rule 34(1)(a) and (3)(b) and (e) – which review, by the express provisions of rule 9, he is not disentitled from seeking. The Tribunal ought, therefore, to have added in their reply to Fabcon's letter that Fabcon had a right to apply for a review under rule 34; and upon such a review the Tribunal would have had discretion to extend the time for presentation of a response. That discretion too, would fall to be exercised on the principles set out in Kwik-Save Stores and in Moroak.
45. The Tribunal did not take that course. That is hardly surprising; in June 2005 Moroak had not yet been reported (although the Judgment, given on 19 April 2005, was probably available on the EAT website); and the way in which rules 6, 8, 9, 33 and 34 were intended to operate was far from easy to appreciate, especially without the benefit of full argument. However, albeit that his reaction was understandable, the Chairman had, in my judgment, no power to order the re-sending of the relevant papers; the re-sending was of no effect in law. The response presented by Fabcon on 19 July 2005 was out of time and should not have been accepted.
46. Accordingly that response cannot stand as a valid response unless and until the time limit is extended to the date on which that response was presented.
47. I do not accept Mr Sharman's submission that the Chairman had power under rule 10 to extend the time for the presentation of Fabcon's response. Rule 10(2)(e) expressly makes the power to grant such an extension subject to rule 4(4); accordingly, such an extension cannot be granted under rule 10 after the 28 day time limit prescribed by rule 4(4) has elapsed.

The way forward

48. I have set out above my conclusions, and the reasons for those conclusions, that:-

(1) The Chairman erred in law in deciding that "sent" in rule 4(1) means "received".

(2) The Chairman ought to have held that Fabcon had not presented a response within the time limit and that, accordingly, rule 9 applied. The purported re-sending of the necessary papers was of no effect; the late response ought to have been rejected.

(3) Fabcon had a right to seek a review under rule 34 upon which review it would have been open to the Tribunal, if it regarded it as just and equitable to do so, to extend the time for presentation of Fabcon's response so as to permit the response presented on 19 July 2005 to stand.

49. The decision which is the subject of this appeal was made not upon an application for review, but upon Mr Bone's application for a default Judgment. The Chairman had a discretion whether or not to issue such a Judgment. He declined to do so for reasons which were erroneous; but it does not follow that he should have issued a default Judgment. The correct course would have been to have treated Fabcon as making an application for a review under rule 34 and, thus, for the Chairman to decide whether it would be just and equitable to extend the time for presentation of Fabcon's response so as to permit the response of 19 July to stand or, if not, to consider a default Judgment. It would not have been sufficient, if it was not just and equitable to issue a default Judgment because Fabcon had not received the necessary papers in time, for the Chairman simply to decline to issue a default Judgment; for that would have left Fabcon still subject to the disentitlement imposed by rule 9. It was necessary for the Chairman to consider relieving Fabcon of the consequences of rule 9; and that could only be achieved by treating Fabcon as having sought a rule 34 review.
50. In Moroak, having reached a similar point, Burton P felt able to decide whether it was just and equitable or in the interests of justice to allow the review and extend the time for presenting a response. I do not believe that I can do likewise in this case. The factors which could go to the exercise of the broad discretion which the Tribunal has, as spelt out in Moroak, were not the subject of full argument before me; and I cannot resolve the disagreement between Mr Vachaviolos and Mr Sharman as to whether the former did or did not ask to be given the opportunity to cross examine Mr Peek. It is formally necessary, in my judgment, for the appeal to be allowed and for these proceedings to be remitted to the same Chairman of the Tribunal, Mr Ash, to decide whether Fabcon's time for presentation of their response should be extended so that their response of 19 July 2005 can stand or, if not, whether Mr Bone is entitled to a default Judgment.
51. However, it is important that, in paragraph 6 of his Judgment, the Chairman said that, if the correct interpretation of rule 4 was not that which he preferred, he would have given leave for a review and almost certainly granted it. Mr Vachaviolos's principal case, that Mr Peek had indicated that Fabcon had received the papers, had collapsed. It is always open to a Respondent to establish that he has not received the relevant papers; see rule 61(2); and there was no other basis on which Peek's assertion that Fabcon had not received the papers could have been attacked, at least upon the material before me. Mr Vachaviolos may well have desired to cross-examine Mr Peek so as to advance, as a secondary case, the argument that Mr Peek ought to have realised from his discussions with Mr Bone and ACAS that a claim had been issued and ought to have done something about it; but a party who has not received the necessary papers from the Tribunal should not lightly be held to be bound to take steps to contact the Tribunal or to have acted, by failing to do so, in such a way as to render it anything other than just and equitable to extend his time to present a response until he has actually received the papers and had an opportunity to present a response. Furthermore, although I have heard little if any argument on this point, it seems very clear from the terms of the response that there are real and substantive issues between the parties as to the merits of Mr Bone's claim, and in particular whether there was a constructive dismissal or a resignation which ought to be decided on their merits.
52. The parties may, in the circumstances, take the view that the expenditure of further time and expense on interlocutory skirmishes should be avoided and that they should, instead, proceed to a hearing as soon as possible. The directions, which were agreed between the parties, set out at paragraph 8 of the Chairman's Judgment can no doubt be appropriately varied by agreement and a date for a hearing speedily obtained.

Result

53. For the reasons I have set out the appeal is allowed; the proceedings are remitted to the same Tribunal Chairman to proceed in accordance with paragraph 50 and 51 above.