Appeal No.	 EAT/878/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
SIR GAVIN LAIRD CBE
PROFESSOR P D WICKENS OBE

MR J PERKINS	APPELLANT

KWELM EMPLOYMENT SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR D H PRESTON
(of Counsel)
Messrs Newman & Maxwell
Lakeside House
9 Knightswick Road
Canvey Island
Essex SS8 9PA	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal against a decision of an Industrial Tribunal Chairman who granted the Respondents, KWELM Employment Services Ltd’s application to extend time for filing their Notice of Appearance.  The Appellant, Mr Perkins, was dismissed by KWELM Employment Services Ltd and notified them shortly thereafter that he intended to take them to an Industrial Tribunal.  He presented his complaint to the Industrial Tribunal on 16 April 1997.

	The Respondents had provided to the Appellant copies of various witness statements, on which they were intending to rely, to demonstrate that the dismissal was fair.  It appears from a letter, which was sent to the Industrial Tribunal in response to the Tribunal’s indication that they would need some reasons as to why they should extend time, that there was a failure of communication, so it is alleged, between the Respondent company and their Solicitors which caused the Notice of Appearance not to have been submitted within time.  

	It seems to us to be significant that when the Notice of Appearance was originally filed, it was filed without any application for an extension of time and it appears that the Respondents’ Solicitors were of the view that, whether or not they had entered an appearance, they would be entitled to call evidence.  They are mistaken in that latter view.  It is to be noted that there are time limits imposed on parties in relation to the filing of documents and the Respondent is given 21 days for filing his Notice of Appearance after receiving the copy of the Originating Application.

	In the Employment Appeal Tribunal we wish to emphasise that that is a generous time limit and is to be regarded as a limit and not a target to be aimed at.  It was quite regrettable that the Respondent’s legal advisers should have failed to comply with the rules and we can well imagine that some Industrial Tribunal Chairmen might have taken the view that there was no proper explanation for the failure by the Respondent and their advisers to file a Notice of Appearance within time and refused to extend time accordingly.  However, we are considering a case where there is an exercise by the Tribunal Chairman of his discretion, whether time should be extended or not, and before we could interfere we would have to be satisfied that the exercise of the discretion on the facts of this case, was manifestly perverse.

	Whilst we, ourselves, might have taken a different view from the Industrial Tribunal Chairman, had we been asked to decide the matter, we are not in a position to say that the Tribunal Chairman’s decision in this case could be described as a perverse or non-judicial exercise of a power which is invested in him.  That said, Industrial Tribunals will wish to be astute to ensure that parties, who have the benefit of legal representation, stick to the rules.

	The Appellant was, rightly in our view, disappointed by the decision of the Industrial Tribunal and filed a Notice of Appeal against it.  Time has passed since the original decision and further steps had been taken in the Industrial Tribunal and a hearing has been fixed for 7 November.  It was Mr Perkins’ original desire a few days ago to withdraw his appeal so that he could get on with the action itself, but it was the response of the Respondent’s Solicitors that if the appeal was to be withdrawn they would instruct Counsel to apply for costs against him and not surprisingly, in those circumstances, Mr Perkins argued his appeal with courtesy and force.  

	It seems to us that the way the Respondent’s Solicitors have dealt with this matter falls short of the standard to be expected of professional advisers.  Mr Perkins, sought the assistance of a Legal Advice Centre called Warterloo Legal Advice Service.  They wrote a perfectly ordinary standard letter before action which provoked a response which, in our judgment, was completely inappropriate and displayed a pomposity and arrogance which is not to be expected of the legal profession.  I quote from their letter:

“We are not certain of the locus standi of the apparently unincorporated body that you state yourselves to be but we do wonder whether you have carefully looked at the definition of the term “assault”.  We do not intend to insult your intelligence by quoting from statute or common law but we feel certain that upon receiving this letter you will carry out that research which perhaps might have been appropriately carried out prior to writing your letter to our client.”

	The response to that letter from the Advice Service was to express disappointment at the tenor of that letter and surprise that a firm such as Newman & Maxwell should have thought it necessary to question the locus standi of an Advice Centre.  That reasonable response provoked a letter from Newman & Maxwell which reads and I quote:

“We do not need a lecture from you as to what is in the best interests of our client and we are surprised that you think yourselves capable of offering this advice.”

	Again, in our judgment, that was a letter which should not have been written by a firm of Solicitors acting in a professional manner.

	At the same time as asking for an extension of time Messrs Newman & Maxwell, on the Respondent’s behalf, applied to the Tribunal to adjourn the hearing which had been fixed for 4 July.  They indicated that the reason why they would need an adjournment was because and I quote:

“None of the personnel who would be giving evidence for the Respondent in the matter are in the UK on that date.”

And that was repeated in a letter of 26 June 1997.

	Mr Perkins had been provided with the statements of evidence of four witnesses.  He attended at the Respondent’s premises with his father on 4 July 1997, and he tells us that he saw one of the four at the premises on the day in question and he assures us that, as a result of the enquiries which he made, the remaining three were also on the premises that day.  If that is right, then it may be that the Industrial Tribunal will wish to consider their powers under Rule 13(2)(e) which provides:

“13(2)   A tribunal may
(e)  subject to paragraph (3), 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, frivolous or vexatious.”

	It is Mr Perkins’ belief that the grounds upon which the Respondents relied for seeking an adjournment of the case were false and that the four people whose witness statements had been provided, who presumably formed the bulk of the evidence to be called on the Respondents’ behalf, were in fact in this country on the date in question.  We are not in a position to make any findings of fact in relation to his contention, but if he believes it to be appropriate that matter can be raised with the Industrial Tribunal by way, if needs be, of a preliminary hearing to determine whether the Respondents have deceived the Industrial Tribunal into making a decision which otherwise they would not have done.

	We are informed by Mr Perkins that the Respondent premises can only be entered through a swipe-card mechanism and that there are computer records, which are kept, which would show when personnel entered the premises.  We understand that that swipe-card system applies to all personnel on the premises from the managing director downwards.  The managing director heard the internal appeal which Mr Perkins was granted against the decision to dismiss him and Mr Perkins accepts that in relation to him he was in the United States of America on 4 July.

	This court has power under Section 35 of the Industrial Tribunals Act 1996 to make such orders as an Industrial Tribunal might make.  Industrial Tribunals have power under Rule 4 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 to require discovery of written material.  We have been invited by Mr Perkins to exercise our power to make such an order.  

	Mr Preston, to whom we are indebted who has appeared on behalf of the Respondents, albeit it without the benefit of a representative from his Solicitors (and we do not criticise him or them in any way) has submitted to us that it would be something in the nature of a fishing expedition if we were to make an order for discovery.  We reject that submission.  It seems to us, on the basis of what we have been told, that there is a possibility that the documentation which comprises the computer records showing who clocked in for work on 4 July, will be extremely material to the decision which the Tribunal may have to make.

	Accordingly, we are going to make an order for discovery of the relevant computer records and we order that that discovery be made within 14 days of today’s date and it should be clear that any person who, without reasonable excuse, fails to comply with an order for discovery shall be liable, on summary conviction, to a fine and the current maximum of the fine will be stated in the order.

	Similarly, if the requirement is not complied with, then the Tribunal has the power under Rule 4(7) to strike out, where appropriate, the Notice of Appearance.

	We have formed no conclusion ourselves as to whether the Industrial Tribunal was misled by the Respondents’ legal advisers into granting the adjournment, but we are satisfied that, in the light of what we have been told, it is a matter which may require to be investigated and for that purpose we have made this order for discovery.

	The consequence therefore is that the hearing date which is currently fixed for 7 November must be vacated.  Mr Perkins will not have his legal representative available to him on that occasion.  He has applied to the Tribunal for that date to be vacated.  As yet he has not heard and there is no criticism of the Industrial Tribunal.  Mr Preston’s position in relation to that date is that, in the circumstances, he could not formally oppose any order vacating that date.  Because there is still uncertainty as to whether the date is effective or not, we think that it would be right for us, again in the exercise of our powers to make any order which the Industrial Tribunal can make, simply to order that that date be vacated.

	It may well be that the Industrial Tribunal will think it sensible that there should be an order for directions in this case, to determine how this case should now proceed and whether there is to be any preliminary issue under Rule 13.

	For these reasons we therefore dismiss Mr Perkins’ appeal.