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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Broudie & Anor v Khan [1999] UKEAT 729_97_2106 (21 June 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/729_97_2106.html Cite as: [1999] UKEAT 729_97_2106

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APPEARANCES

 

For the Appellants	MR NICOL (OF COUNSEL) (Instructed by R M Broudie & Co Solicitors 1-3 Sir Thomas Street Liverpool L1 8BW
For the Respondent	MISS H CANNON Solicitor Messrs Shammah Nicols St John's Court 78 Gartside Street Manchester M3 3EL


 


MR JUSTICE MORISON (PRESIDENT): This is the Judgment of the Court. The Employment Appeal Tribunal considered this Appeal at a Hearing in Chambers on 20^th April 1999. The Judgment that was given on that occasion sets out the background to this rather unusual appeal and does not need to be repeated here.

1. Part of the Order that was made, following that Directions Hearing, was for the supply of an affidavit from the solicitors who were then acting for R M Broudie & Co, who are themselves solicitors. Those solicitors for R M Broudie & Co were present at the Employment Tribunal Hearing which led to a decision which is the subject matter of this Appeal. It was considered by me, (and I think I can say by all who participated at the Directions Hearing) to be a good idea that the legal representatives who had participated at the Employment Tribunal should provide their recollections as to what had occurred and what use, if any, had been made of the forged document. It was not anticipated, it has to be said, by the Court nor, indeed, by the parties appearing at that time, that there would be any difficulty in complying with the Order that the affidavits be provided within, I think, 21 days. Unfortunately, there was a dispute between R M Broudie & Co and their former solicitors in relation to the question of costs, and when approached for an affidavit, the gentleman concerned made it plain that he would only be prepared to co-operate and provide an affidavit, setting out his recollection of the proceedings, in return for an undertaking from R M Broudie & Co to pay such of his costs as were found to be due and unpaid. That position was not acceptable to R M Broudie & Co for reasons which do not need to be gone into in detail here. Accordingly, R M Broudie & Co got in touch with the Employment Appeal Tribunal to explain that they were having difficulties in providing this evidence.
2. They wrote on 4^th May saying they were not presently able to provide the affidavit. They did not, in my view, put forward with clarity why it was that they were unable to comply with an Order of the Court and to that extent, they are to be criticised for that letter. In addition, R M Broudie & Co did not provide the consolidated amended Notice of Appeal which was also ordered and which was required by 4^th May. It was a tidying up process rather than anything of substance. I see no reason why that could not have been complied with within time and I am not satisfied that any proper explanation of that, other than oversight and pressure of work, has been put forward. In due course, the Employment Appeal Tribunal did extend time for that step to be taken. But it should be said that that was a matter which should have been attended to promptly and was not.
3. The next thing that happened was that the Employment Appeal Tribunal made an order, on the 19^th May 1999, requiring that the affidavit be provided and that in default, the case would be struck out. That Order could not be complied with (I am satisfied on the material put before me) in the sense that the Deponent to the Affidavit was not willing to give it, save on terms. It has been submitted by Miss Cannon, who has appeared on behalf of the Respondent to this Appeal, with considerable ability (if I might respectfully say so) that in fact, Broudie's did have a chance to get the affidavit material from the solicitor. All they had to do was either to give the undertaking requested of them, or alternatively, to pay the costs which were being demanded under duress and then taken proceedings to recover the monies so paid in due course. Whilst I accept that those two possibilities were open to R M Broudie & Co I am not persuaded that in the context of this particular litigation, that was something which they reasonably could be expected to have done. It is regrettable that the solicitor was not prepared to provide the affidavit in accordance with the Order of the Court.
4. The position is therefore, that an Unless Order was made, which was not complied with and technically speaking, the proceedings should have been struck out in accordance with the Order. However, the striking out has not been given effect to formally, but I am satisfied that whether it has been or not, the Court has power under its Rules of Procedure and inherent jurisdiction to vary the order and extend time for its compliance. In terms of its Rules, if the Order has not been perfected then time for compliance with the Order may be extended, that is, Rule 37. Insofar as the Decision or Order has been made and represents an Order that has been perfected then the Appeal Tribunal has power under Rule 33(1) and Rule 37 to review that Decision in the interests of justice and to extend time for compliance with it.
5. Miss Cannon submitted to me that in the exercise of my discretion, which she did not argue that I did not have in this case, I should take account of R M Broudie & Co's conduct after the Order was made by the Court on 20^th April. She points out that they were late in dealing with the consolidated Notice of Appeal. She points out that they were sending letters to the Employment Appeal Tribunal which they were not sending on to her firm. That was quite wrong, in my view. Her own firm has been punctilious, as I understand it, in sending copies of any correspondence that they are sending to the Employment Appeal Tribunal to the Appellants and the same should have applied the other way round. She also points out that when the Employment Appeal Tribunal was being asked to extend the time for compliance with the Unless Order or alternatively, to vary it so as to enable the witness statements of the solicitor provided for the criminal proceedings to be used instead, Messrs Broudie & Co enclosed with that application a letter to their previous solicitors which, suggested that they had not been in recent correspondence with them, despite the fact that the Order had been made some time before. She says that that was, in a sense, deceptive and it was a letter which should not have been written.
6. She says that when they did comply or purport to comply with the Order as to the consolidated Notice of Appeal, that there was, in fact, non-compliance and she drew attention to the last paragraph of the document which it is accepted by Mr Nicol QC, on behalf of R M Broudie & Co, should not have been in the Notice of Appeal. That is a very minor point in one sense, because the last paragraph is in conflict with what is accurately set out earlier on in the document, but it does show, in my judgment, a lack of care in dealing with this matter. In those circumstances, what Miss Cannon said was that I should approach the exercise of my discretion in accordance with the principles set out in, what I will call for summary purposes, the Hi-Tech decision.
7. The passages which will be incorporated in this judgment are to be found at page 1672 at A and a passage which I now will read, because it is short:

"The basis of the principle is that orders of the Court must be obeyed and that a litigant who deliberately and without proper excuse disobeys such an order is not allowed to proceed. The rationale of such penalty being that it is contumelious to flout the orders of the Court. If a party can explain convincingly that outside circumstances account for the failure to obey the peremptory order and that there was no deliberate flouting of the Court's order his conduct is not contumelious and therefore the consequences of contumely do not flow and then later on the Court should not be astute to finding excuses for such failure since obedience to orders of the Court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to such extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed."

8. Two further passages: the first is at page 1674 at H through to 1675 at the end of B which must be incorporated into this Judgment.
9. It is plain, as it seems to me, from the principles that have to be applied that like all procedural matters, the Court is endeavouring, by the Orders which it makes, to achieve the interests of justice as best as it might, but it will also recognise that obedience to Court Orders is constitutionally important. This Court does not make Unless Orders lightly and if they are not obeyed the almost invariable consequence must be that the threat contained in the Unless provision will be implemented. I am satisfied on the other hand that, as I have already indicated, the reason for non-compliance is due to outside circumstances and I am also satisfied, as I think is quite clear and has not been argued to the contrary, that this is not a case where there has been any deliberate flouting of the Court's Order. This is not a case, therefore, in which it is clear that the peremptory order must now be put into effect, but I advise myself that I should not incautiously condone or overlook the importance of preventing breaches of Orders made by this Court and that a defaulter can only escape consequences of this kind of Order if he can persuade the Court to exercise its discretion in his favour.
10. In the circumstances of this case, because there has been no deliberate flouting and because the reason why the Order could not be complied with, was through the unwillingness of the witness to provide the affidavit when asked to do so, I am prepared to consider exercising my discretion. I take into account the points which Miss Cannon has made on that issue. There is much to be said for those points. On the other hand, I take into account the fact that it was effectively impossible for R M Broudie & Co to comply with the Order. If, at the time when the Order had been made, it had been known what was going to happen, I am sure the Order would not have been framed in those terms. I am told that Mr Edge of the former solicitors, made a Criminal Justice Act statement which was read to the Criminal Court. It was read, presumably, because its contents were not challenged.
11. I was invited therefore, in the correspondence, to accept as an alternative to the affidavit, Mr Edge's Criminal Justice Act statement. It is said by Mr Nicol that it would be contrary to principle to de-bar a party from appealing due to a circumstance beyond his control. They could ask for the affidavit but they themselves had no means by which they can compel it. This Court could either accept the written Criminal Justice Act statement or itself issue a subpoena against that person who will come to the Court and tell it what use was made, if any, of the forged document. So, Mr Nicol says, the Order was too harsh. It should not have resulted in the striking out of the whole of the Appeal and I should exercise my discretion in their favour.
12. I am prepared to do so, somewhat reluctantly. I want to make it quite clear that when an Unless Order is made, if it is not complied with, as I say, almost invariably, the consequences are those spelt out in the Unless Order.
13. But it does seem to me that this comes at a price. I take into account the cost that has been incurred on behalf of Ms Khan, the other party to this Appeal, who is represented by Miss Cannon. It does seem to me that she is, to an extent, the victim of costs which have had to be incurred on her behalf in dealing with what should have been a straightforward matter following the Order which was made on 20^th April 1999. She has conducted her client's business with ability and correctly, as it seems to me. She was entitled to come here. There is a breach of the Order of the Court which has been made. She was entitled to defend her position and I am satisfied that the consequence of exercising my discretion against her client, does not disentitle her to the costs. I have a power to make costs orders where it appears that that has been unreasonable conduct in conducting an Appeal. I am satisfied, for the reasons that I have highlighted, that there has been unreasonable conduct in this matter; that R M Broudie & Co have had to come to the Court having failed to comply with an Unless Order and it does seem to me, in those circumstances, that I should exercise my discretion to make an Order for Costs. I am of the view that this Hearing would have been unnecessary if R M Broudie & Co had conducted themselves differently. I am not satisfied that it would be fair to distinguish between the costs incurred in correspondence and the costs of today. I am impressed with Miss Cannon's submission that she was entitled to be here, even though, at 2.24pm on Friday, R M Broudie & Co offered to pay their costs. That was a very late offer as it seems to me and I regard the position of the Respondent as being protected by a proper Order for Costs, including today, which should be all the costs incurred since the 11^th May in relation to the affidavit material and including the costs of today on an indemnity basis and I direct therefore, that those costs be assessed by the Taxing Officer, assuming I am not he, and be paid accordingly. I grant a Legal Aid certificate to Miss Khan, so that the costs can be dealt with properly.
14. The consequence is that the Appeal is still alive. I consider that this is going to be one of those rare cases where the Employment Appeal Tribunal would be assisted by having the witness here. I therefore propose to issue a subpoena compelling the attendance of Mr Edge. His full names are John Michael Edge; To attend before the Employment Appeal Tribunal as a witness in relation to the events that occurred at the Employment Tribunal proceedings between 21^st and 24^th January 1997 and I further Order that he produces any notes made of those proceedings and I make that Order in the exercise of my powers under Rule 27 of the Employment Appeal Tribunal Rules on the application of R M Broudie & Co, Mr Nicol QC. Whether and to what extent that evidence will be determinative of the issues in the Appeal is a matter on which I am not prepared to make any comment at this time. As I have indicated in my previous Judgment, there is a question which may have to be resolved as to whether, in any event, on the conviction of the Respondent for forgery in connection with these proceedings, the Appeal should be allowed. I give no indication about that matter one way or another. I further direct that the Criminal Justice Act witness statement of Mr Edge be sent to the Employment Tribunal Chairman, together with any affidavit material provided on behalf of Miss Khan.
15. The question arises as to the value, if any, to be attached to an affidavit which has been provided to the Employment Appeal Tribunal by the barrister who was acting on behalf of R M Broudie & Co at the Employment Tribunal Hearing. Miss Cannon makes the point forcibly, and in my judgment, sensibly, that when one compares the affidavit evidence of the barrister with the written witness statement of the solicitor, they are in almost identical terms. No doubt, the Learned Chairman will take note of that as he seeks to prepare his own report based on his own recollection of what took place. In other words, I think what Miss Cannon is saying is that Mr Lyons' affidavit is simply a repetition of Mr Edge's statement and might not, although this may be an issue in the Appeal, be considered to be independent, corroborative evidence. But that is something which the Chairman would wish to note. It is what the Chairman has to say from his recollection that is going to be important.
16. The Direction is that when the affidavit has been prepared then the witness statement of Mr Edge and the affidavit of the barrister, Mr Lyons should be sent to the Chairman for his comments.
17. I make an Order to the effect that paragraph 7(e) of the Re-Amended Notice of Appeal be deleted.