Appeal No.EAT/199/2000

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 February 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR L D COWAN
MRS M T PROSSER

MR A R CHONG	APPELLANT

MAREK & CO	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	MR M MALONE
(Solicitor)
Messrs Canter Levin & Berg
Solicitors
4th Floor
The Corn Exchange
Fenwick Street
Liverpool L2 7RB	
For the Respondent	MR RICHARDS BRADLEY
(Solicitor)
Instructed By:
Messrs Whitfields
Solicitors
PO Box 3 Marion House
23/25 Elbow Lane
Formby
Merseyside L37 4AB	

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us an interlocutory appeal in the matter Andrew Robert Chong against Marek & Co.  There is a Notice of Appeal on behalf of Mr Chong of 16 February 2000.

1	It is necessary to give something of a chronology to explain the procedural background because this is very much a procedural case.  

2	On 8 November 1999 Mr Chong lodged an IT1 with the Employment Tribunal.  In the ordinary way we assume that that IT1 was then sent out to the Respondent, Marek & Co, and should have been accompanied by an IT2.  Strictly speaking, its sending out by the Employment Tribunal and its accompaniment by an IT2 is not proven directly, but it is accepted by Mr Bradley, for Marek & Co, that the IT1 was received by the Respondent on 12 November 1999.

3	It is Mr Bradley’s case, as Solicitor to Marek & Co, that that same day the IT1 was sent on by Marek & Co to its Solicitors.  On 16 November an IT3 drafted by the Respondent’s Solicitors was sent to the Respondent for approval.  It was then approved by the Respondent but, by an oversight then or thereafter, the Respondent’s Solicitors failed to lodge the IT3 with the Employment Tribunal.  The time for doing that is prescribed by Rule 3(1):

“(1)  A respondent shall, within 21 days after receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance.” [then it prescribes what has to be in the notice of appearance]

4	The penalty for not doing so (if that is the right way of describing it) is dealt with in Rule 3(2):

“(2)  A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except -
(a)  to apply under rule 15 for an extension of time appointed by this rule for entering an appearance.”

And then there is (b), (c), (d) and (e) which we need not read and, to complete the citation from the rule, sub-rule (3) provides that a notice of appearance presented out of time is to be taken automatically to include an application under rule 15 for an extension of time, and sub-rule (4) has a system under which, if the Chairman hearing an application for an extension of time determines that it would have been practicable for the Respondent to have entered an appearance in time, he may indicate that that is the case and can make the provision as to costs which is there specified.

5	So the position is that, come 16 November 1999, there is, in the Respondent’s Solicitor’s hands, an approved draft of the Respondent’s Notice of Appearance, but it was not sent to the Tribunal.  It was, however, referred to in correspondence between the Respondent’s Solicitors and the Appellant’s Solicitors.  

6	On 29 November Whitfields, the Respondent’s Solicitor, wrote to Canter Levin & Berg, the Applicant - Appellant’s Solicitor, saying, “Further to the above and paragraph 3 of our client’s Response”.  It plainly indicates that Whitfields thought there had already been a client’s response.  The paragraph 3 they referred to would seem to refer to a typescript that was intended to be added to the IT3.  The IT3 itself, the printed form, has a relatively small space for completion of details and it is not uncommon for parties to add to that with a handwritten or typewritten supplement.  There is in this case a 2½ page typed supplement and the reference to paragraph 3 in that letter of 29 November makes sense in that regard.

7	So, the Appellant’s Solicitors were, not unnaturally, a little puzzled to see a reference to an IT3 which they had not seen and they answered on 1 December 1999 saying, “Your request is a little premature since we are yet to see your client’s IT3”.  Canter Levin & Berg wrote to the Employment Tribunal asking for a copy of the IT3, understanding that one had been filed.

8	On 6 December Whitfields wrote to Canter Levin & Berg saying, “We attach copy IT3 as requested”.  There did not seem to be any consciousness in Whitfields that they had not yet sent one to the Tribunal itself, but they had now sent one to the only other party in the case and they sent with it the typed supplement, as it seems.

9	In the meantime Whitfields had been pressing for documents to be disclosed by the Applicant and his Solicitors and they were, so to speak, getting nowhere with their request.  I make that comment not as any sort of comment on the merits; it is just that the documents were not provided.  I do not mean to say that it was right that they should have been.  

10	In the course of correspondence in relation to the documents the position came about that Whitfields, finding themselves getting nowhere, felt that they had to apply to the Tribunal for an order for the documents.  

11	On 22 December 1999, by a document which is its chronological place in our bundles (at our page 35), Whitfields wrote to the Employment Tribunal setting out a request for particular documents.  We do not need to go further with that at this point.  There is no consciousness in that letter, as late as 22 December, that Whitfields had realised that they had not yet actually lodged anything with the Employment Tribunal.

12	On 7 January 2000 the Respondent’s Solicitor’s sent a reminder to the Employment Tribunal that they had not heard from it in relation to documents and on 11 January 2000 the Tribunal indicated to Whitfields that no Notice of Appearance had been received in time.  No Notice of Appearance had been received and, according to the ordinary practice of the Employment Tribunal, the matter was therefore marked as “Appearance not Entered”.  It seems (although, this appears only from a later piece of paper) that on 12 January, after having been approached by Whitfields on that day, the Chairman of the Employment Tribunal retrospectively validated the Respondent’s Notice of Appearance which was received by him that day.

13	On 12 January 2000, Whitfields had written to the Employment Tribunal saying, inter alia:-

“It would appear by way of oversight on that same day [6.12.99] Form IT3 was not submitted to the Tribunal office.  There was every intention to do so as our client had approved the draft Form of Response in the form submitted to the Applicant’s Solicitors.
Pursuant to Rule 15(1) of the 1993 Regulations we therefore must formally apply to the Chairman of the Tribunal for an extension of time to allow our client’s Response to be admitted into the proceedings in the light of this error.
We apologise to the Chairman for this oversight and would submit that in the light of the fact that the Applicant has received copy of the same and has corresponded with us in the manner of a contested application that there will be no prejudice to the Applicant should the Response be allowed to be entered.
We do however await the Chairman’s comments as soon as possible.”

That was the letter that successfully led to the retrospective validation.  The retrospective validation was actually notified on 18 January.  It read:

“…  A Chairman has considered the reasons for the late entry and has validated the Notice of Appearance by extending the time under the provisions of Rule 15 of the Employment Tribunals Rules of Procedure 1993 ..” [and then warned as follows]:
“You may, however, be liable to pay costs under the provisions of Rule 3(4) as the Chairman has determined that it would have been reasonably practicable for the respondent to present the Notice of Appearance within time.”

That question was left over until the conclusion of the hearing.

14	It is in that way that the retrospective validation came about and Mr Malone on behalf of Mr Chong, the Appellant, puts very much in issue the propriety of the approach adopted by the Chairman in this case.  Subsequently to that correspondence that led to that result it was indicated that the Chairman would not permit the matter to be re-opened.  He did not wish to entertain an oral hearing on the point and Mr Malone takes the view (and there is no dispute about it here) that he was therefore obliged to appeal to this Tribunal.  He accepts that the Chairman was empowered to deal with the application for a retrospective validation ex parte.  He submits, or accepts, that there is no power open to him to insist that the Chairman should have an inter partes hearing and because of that, he says, the only remedy open to him is the appeal which he has set about.

15	He first addresses the case to establish what are the principles which lie behind the discretion which is conferred by Rule 15, which I shall not read but which can fairly be said to be an unfettered discretion in the sense that the classic word “may”, as the indication of a discretion, forms part of it and yet it is not cut down in any way to indicate that this or that has to be a pre-condition of any exercise or of any refusal of an exercise of the discretion.

16	In that context it is worth reminding ourselves of the classic language relative to Rules or Statutes conferring judicial discretions which can be found in Gardner v Jay [1885] Ch. Division 50 in the Court of Appeal, at page 58, in a passage of characteristically lapidary clarity from Bowen LJ.  In more modern times one can find a similar description in In re Southard & Co [1979] 3 All ER 556 in the Court of Appeal, where the identified passage in Gardner v Jay was approved by Buckley LJ at page 562.

17	A summary of that approach to judicial discretions is that where the Statute or the Rule has not indicated what Bowen LJ called “the particular grooves” in which it should run, then, if the Act or the Rules have not fettered the discretion of the judge, how could the Court do so, making also the point that where other cases are cited of the exercise of a relevant discretion, they cannot fetter the discretion of another judge where the Rule in question has left the discretion open.  There is no challenge to that approach in this case.  It is with that approach in mind that we need to look at the authorities to which Mr Malone has drawn our attention.  Chief amongst them, in the sense that it is most in his favour, is City Centre Restaurants (UK) Ltd t/a Garfunkel’s v Mr M Calheiros, an unreported decision in this Tribunal headed by Morison J as President and given on 9 October 1996.  In that case there was a discussion relative to an earlier case, Horsefield v Roberts, which was a decision of the EAT under Browne-Wilkinson J. (as he then was).  In that earlier case Browne-Wilkinson J. said, in relation to the failure of a woman respondent to enter an appearance on the ground that she did not know that she had to and had been very busy with her work:-

“You have to look at the whole of the circumstances of the case, and so far as possible, you do not debar somebody from taking part in the proceedings if he can be allowed so to do without injustice to the other parties.”

But that approach, said Morison J, in Calheiros, could lead to abuse.  He said at page 6 of the transcript:

“It seems to us that if one was to take prejudice as the guiding principle for the determination of the exercise of the tribunal’s discretion to extend time, it would be most unlikely that there would be any case where time would not be extended. Thus by applying the prejudice rule as the prime rule, the time limits provided by the Rules would become meaningless. 
It seems to us that the position is as follows:  that where the tribunal is considering whether an extension of time should be granted or not, they should first of all satisfy themselves that a reasonable explanation has been put forward for the non-compliance with the court’s rules. Only when such explanation satisfactory to the tribunal has been given, will it be necessary to consider the question of prejudice, and in those circumstances, it is likely on the facts of a case similar to this one, that if stage two is reached the discretion will be exercised in the respondent’s favour.”

A little later he said:

“In those circumstances, [that is the circumstances of that particular case] the Industrial Tribunal did not need to proceed to stage two of the test, because the employers had failed to satisfy them at stage one.”

And he said, on the next page:

“ … we are satisfied that there is now a two stage test.”

18	With respect, one can see the force of the submission that, if prejudice alone were to be taken as the determinative factor, one could very readily get to a position in which the Rule had become almost revoked.  But Browne-Wilkinson J did not say that prejudice was to be taken as a prime factor.  What he had said was that you have to look at the whole of the circumstances of the case without any indication that prejudice alone would be taken to be determinative.  Once it is recognised that prejudice is but one of the considerations, it seems to me that the reasoning of the Employment Tribunal in Calheiros has to be laid aside and moreover, we would be unhappy at accepting the formulation that there was a two-stage test.  The discretion conferred by the Rules does not say there is a two-stage test.  It could very easily have so provided had that been intended but, I think we have to take it that, that not having been said, it was not intended but rather that there is the unfettered discretion which Rule 15 confers and which operates in the region of Rule 3.

19	It might be added that there is in our case no equivalent of the delay in the Calheiros case, where there was only 14 days limited for entry of a Notice of Appearance, which was quite a considerable delay from something like 24 or 25 July to the lodging of an IT3 on 29 August.  There is no equivalent in that case, either, of the material factor that we have in our case, namely that a copy of the IT3 had been sent to and received by the Applicant long before it was registered with the Employment Tribunal itself.

20	We were next taken to Wood v Lambeth Service Team Ltd, another decision of the EAT but I think it can be laid aside because it was dealing with the very different issue of extending time for the lodging of a Notice of Appeal.  What is in issue when it is being considered whether time should be extended to admit the lodging of a Notice of Appeal out of time is whether there should be any further proceedings at all.  By contrast, in a case such as ours where what is in issue is an extension of time in relation to a Respondent’s Notice of Appearance, there will be proceedings because the Notice of Appeal is already in being and the question really is whether the Employment Appeals Tribunal, or the Employment Tribunal in this case, should be denied the presence of both parties and the assistance of both parties, and whether the Respondent should be denied the ability to lay before the Tribunal whatever evidence and argument he might wish to.  Ours is a very different situation from that obtaining in Woods v Lambeth.

21	We also have been taken to Kwik Save Stores Ltd v Swain [1997] ICR 49, another decision of the EAT, this time under Mummery J.  Mr Bradley for the Respondent draws to our attention a particular tract of that case beginning at page 54, where one finds this, under the heading “The discretionary factors”.  

“The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion.  An applicant for an extension of time should explain why he has not complied with the time limits.  The tribunal is entitled to take into account the nature of the explanation and to form a view about it.  The tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default.  In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight.  In each case it is for the tribunal to decide what weight is to be given to this factor in the exercise of the discretion.  In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest.
In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered.  The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice.  An important part of exercising this discretion is to ask these questions:  what prejudice will the applicant for an extension of time suffer if the extension is refused?  What prejudice will the other party suffer if the extension is granted?  If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then that is a factor in favour in granting the extension of time, but it is not always decisive.  There might be countervailing factors.  It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying them to a rule of law not tempered by discretion.”

22	That, it seems to us, is entirely consistent with the earlier view that we have cited from the judgment of Browne-Wilkinson J and is inconsistent with the two-stage approach in Calheiros.  It is notable that Kwik-Save and Swain was not cited, as it could have been, in Calheiros.  What the result would have been had the EAT in Calheiros had Kwik-Save cited to it we cannot guess.

23	Then we were taken to Gormley (Marble Specialists) Ltd v Johnson, an unreported case in the EAT, the judgment of which was given by His Honour Judge Wilkie sitting with Mr A.C. Blyghton and Mr T.C. Thomas on 18 June 1999.  In that case the explanation that was given for the delay was taken to be no explanation at all.  In paragraph 11 the Tribunal says:

“The explanation which has been given by Mr Ison in his affidavit does not amount really to a explanation.”

But the Tribunal went on to say (and this is at their paragraph 25), that having studied, in outline at any rate, the nature of the defence which the Respondent there wished to mount:

“The defence is either non-existent or extremely shadowy.”

And one can quite see that if it is shown that a defence sought to be mounted by someone who is already out of time is either non-existent or extremely shadowy, then it is very likely to be inappropriate to let the case go further forward.

24	Mr Bradley says that this is not such a case.  The defence that is mounted in this case is outlined in the Response pages which are added as a supplement to the IT3 in the manner I indicated earlier.  It would not, of course, be right for us to embark on any sort of mini-trial to establish whether ultimately that ground will succeed or not, but what we are able to say at this stage is that the ground that Mr Chong never was an employee of Marek & Co cannot be said to be anything like so utterly devoid of chance of success as properly to be struck out or not to be allowed to go further at this stage.

25	More generally, Mr Bradley seeks to invoke a modern approach to the old clash between strict adherence to time requirements and the doing of justice by reference to recent cases.  He has taken us to what he says is, in effect, the high point of a strict adherence to time requirements, namely to Savill v Southend Health Authority [1995] 1 WLR 254 in the Court of Appeal.  We do not need to read the case because we take the view, as he has submitted, that that approach has since yielded to a rather more flexible, less mechanistic, approach of which a good recent example is Finnegan v Parkside Health Authority [1998] 1 WLR 411 C.A.  At p 420 in the judgment of Hirst LJ, with whom Mantell LJ agreed, one finds at H a passage begins at follows:

“For present purposes it is extremely important to note that Sir Thomas Bingham M.R. expressly disapproved of a rigid mechanistic approach, and rejected the contention that the application for an extension should be heard first, and that dismissal of the action is an inevitable result if the applicant fails to show good reason for his procedural default.
If there was any doubt as to the strength and breadth of guidance given by Costellow’s case [that is a reference to 1993 1 WLR 256] in the general application of … [rules of the Supreme Court] that in my judgment was finally laid to rest by Mortgage Corporation Ltd v Sandoes, The Times, 27 December 1996, which follows precisely the same line of principle, and again expressly rejects the notion that the absence of a good reason is always and in itself sufficient to justify the court in refusing to exercise its discretion; that case moreover lays down clear guidelines requiring the court to look at all the circumstances, and to recognise the overriding principle that justice must be done.”

26	That, it seems to us, again accords with the view outlined in the early case of Browne-Wilkinson J; dealt with in the Calheiros case.  In Calheiros that case was dealt with on the basis that it was a case in the early days of the jurisdiction as to unfair dismissal but it does not seem to us that because it was an early case it was necessarily wrong.  Indeed, as it is in accord with cases as late as Finnegan in 1998, it seems to us that it must be taken to be right that there are no two stages, as Calheiros suggests, and that rather one is to look at the whole of the circumstances and, in particular, to have regard to the justice of the case and to a balancing of prejudice on one side and on the other.  True it is that if the retrospective validation is allowed to stand Mr Chong suffers the prejudice that he has to contest the case, if he wishes to, on the merits, but that can hardly be regarded as a material prejudice.  On the other hand, if Marek & Co are denied the ability to defend then they lose a case which is not on its face necessarily a losing case but, so far as it can be viewed even at this early stage, is a case that has merit in it and which justice requires should be properly investigated and heard.

27	In the circumstances, turning away from a two-stage test and looking instead to all the circumstances, it seems to us that the Chairman came to a result which was, first of all, within the powers given to the Employment Tribunal.  Secondly, the discretion conferred seems to have been exercised within appropriate guiding legal principles and, thirdly, it cannot be attacked on what Mr Bradley calls “Wednesbury principles”.  In other words, it is not a decision to which a Chairman properly instructing himself could not have arrived.  All in all, therefore, we dismiss the appeal and allow the Chairman’s retrospective validation to stand.

[After Further Argument]

28	We now turn to part two of the Chong against Marek appeal.  It can be dealt with a good deal more shortly than the earlier part of the case that we have given a judgment in already.

29	At an early stage in the dispute between the parties requests began to be made for particular documents.  The requests were declined in the sense that Messrs Whitfields wanted documents, on the part of the Respondent, Marek, but Canter Levin and Berg, on the part of Mr Chong, were saying that the documents were unnecessary for the decision of the case.  Thus as early as, for example, 29 November Whitfields wrote to Canter Levin and Berg saying:

“.. would you please let us have copies of the accounts for the last three years of the following businesses conducted by your client.”

And then there is a particular request for three different classes of accounts.  The correspondence indicated that Canter Levin and Berg thought those were irrelevant and unnecessary and in no time at all the position was that Whitfields were saying that if they were not to be given the documents voluntarily then they would have to apply to the Tribunal for them.  In fact it was that approach to the Tribunal that drew to Whitfields’ attention, for the first time, that by an oversight, which we explained earlier, no Notice of Appearance had been lodged by Marek & Co.

30	The issue between the parties, or the chief issue, is whether the relationship between Mr Chong and Marek & Co was one of employee and employer or rather, whether Mr Chong was merely acting under a contract for services.  The manner in which Mr Chong was paid, the way in which he demanded payment, the names under which he supplied services and so on, one can see, are likely to be relevant to that chief issue.

31	On 22 December Whitfields wrote to the Tribunal saying:

“It is the Respondent’s submission to the Tribunal that the last three years’ accounts in respect of each business are documents which would be the subject of an Order for Discovery granted by a County Court as being relevant to the issues between the parties on the question of 
(a) Mutuality [and then they explain that]
(b) Whether the services were performed wholly by the Applicant … .”

And then at the end of the letter they said:

“Furthermore if such information is not discoverable in the documents which have been requested it may be necessary, we would submit, for the Tribunal to consider an Order for the Applicant’s Self-Assessment Tax Returns to be disclosed and we would [request] that the Tribunal consider such an order as an alternative to ensure that a correct and full information is available to the Tribunal and to the parties.”

32	That request met with an order on 18 January:-

“The Tribunal HEREBY ORDERS that on reasonable notice on or before 2 February 2000, the Applicant shall produce for inspection at Canter Levin & Berg [then an address is given] …
The Applicant’s Tax Returns for the last 3 years.”

It is a rather strange response to the request because the request said, as it seems, that if the three particular kinds of account were not discoverable, only then would the Tribunal be required or invited to consider an order for Self-Assessment Tax Returns but, for some reason, the Chairman ordered the alternative request rather than the main one.  That order came to the notice of Canter Levin and Berg as Mr Chong’s Solicitors and on 25 January they wrote to the Tribunal:-

“We are also objecting to the Order for inspection of documents dated 18 January 2000.  With reference to our earlier correspondence on this point, it is unclear whether or not the Chairman considering the matter took into account the issues raised therein but we maintain that the requirement for production of the accounts is prurient and will be of no probative value as far as these proceedings are concerned.  Consequently, in accordance with Note (3) to the Order, we should be obliged if you would treat this letter as constituting notice of our client’s Application for the Order to be set aside.  May we suggest that this issue should be listed to follow on from review of the retrospective validation on the basis that whether or not it needs to be considered will depend on the outcome of the other issue.
In light of the above, we should be obliged if you would arrange for the matter to be listed accordingly.  If that hearing [our emphasis] cannot take place before 16 February or will leave insufficient time between the preliminary hearing and the currently scheduled full hearing, we should also be obliged if you would vacate the hearing scheduled for 16 February.”

33	Plainly what Canter Levin and Berg are asking for was an opportunity at an oral hearing to challenge the order for disclosure.  However, the Employment Tribunal on 2 February said:

“With regard to your request that the Tribunal’s order of 18 January 2000 be set aside, that request is also refused.  Disclosure is ordered on the basis of relevance and whether it is necessary for the fair disposal of the proceedings or the saving of costs.  The Chairman is satisfied that disclosure of the documents sought has relevance to the issue of mutuality and necessary for the fair disposal of the case.
The order therefore stands.”

Pausing there that, of course, means that the order is for the Applicant’s Tax Returns for the last three years, as it would seem, but the order then continues:

“… however, the order is varied [so simultaneously we have it standing and being varied] so that the following information is disclosed by 11 February 2000.”

And then accounts for the last three years of 3 listed accounting bodies (1), (2) and (3) are described; they are the three different types of account which had been in play from the start.

34	On 3 February Canter Levin & Berg indicated to the Tribunal that they were going to appeal that decision.  Also, of course, the first decision (the retrospective validation) which we have already dealt with.  They asked for reasons for each decision in order properly to compile an appeal and, on our page 60, on 4 February 2000, the answer comes back from the Tribunal that the Chairman had nothing to add to what had already been stated.  There was no reason given for the move from the original order for the accounts to the latter form of order for the accounts beyond the rather generalised statement on 2 February that the Chairman was satisfied that disclosure of the documents sought had relevance to the issue of mutuality and was necessary for the fair disposal of the case.

35	The position therefore is unsatisfactory in the sense that Canter Levin and Berg manifestly asked for an oral hearing.  They did not, in their letter of 25 January, set out a full argument as to why they wished the order for disclosure to be set aside but really did no more than invite a date to be set for an oral hearing.  The sort of argument that a party would be likely to mount in order to argue that disclosure was unnecessary or irrelevant is far longer and requires far more thought than is appropriate in a simple letter asking for an oral hearing and it cannot, in our view, be just for the Employment Tribunal to rule, upon what is an important issue to both sides, as if the Canter Levin and Berg letter of 25 January 2000 asking for an oral hearing represented all that could be argued against the disclosure.

36	There is, at a more technical level, the possibility that Rule 4(5) has not been complied with.  Under Rule 4(1)(b) there is provision, in effect, for discovery or inspection to be ordered.  Rule 4(5) says:

“(5)  Where a requirement has been imposed under paragraph (1), (2) or (3) –
(a)  on a party in his absence.”

Pausing there, that is, of course, the case here.  Canter Levin and Berg never had an opportunity to be present before the Tribunal.  The rule then continues:

“That party or person may make an application to the tribunal to vary or set aside the requirement by notice to the Secretary given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with; and the Secretary shall give notice of the application to each party or, where applicable, to each party other than the party making the application.”

37	If the Employment Tribunal had recognised the letter of 25 January 2000 as an application to vary or set aside, rather than, as it was actually expressed to be, “notice of our client’s application for the order to be set aside” and a request “for the matter to be listed accordingly”, one could reasonably expect that the Tribunal would then have circulated both parties as that rule requires and yet we have not been able to find in the papers before us a notice sent out by the Employment Tribunal to Messrs Whitfields.  

38	Mr Bradley rightly says that if that is a defect, it is a defect which can only affect Whitfields and he does not complain of it.  But it might go deeper than that in that it might indicate that the Employment Tribunal did not regard the letter of 25 January 2000 from Canter Levin and Berg as itself being an application to vary or set aside, in which case they have not yet had an opportunity of any kind, in writing or orally, properly to address the issues that arise.

39	We say nothing at all on the merits of the case for discovery and we certainly would not want the Chairman to think that we were, in any way, ruling that his order at a substantive level was inappropriate but it does seem to us that at a procedural level it has been inappropriate in that Canter Levin and Berg manifestly expected an oral hearing.  They were not told that they could not have an oral hearing.  They were not told that they had to submit such argument as they wanted to submit but in writing and yet, ultimately, the decision went against them without their having had a fair opportunity to put the case which they wanted to put.

40	So we set aside the decision as to disclosure of documents.  We remit it to the Chairman.  He will have an oral hearing at which both sides can be heard to argue for and against the relevance or irrelevance of the particular papers, which are the subject matter of the current order, namely the three sets of accounts:

(1)  A.R.C. Book-keeping Services
(2)  Maxweald Finance Limited
(3)  Robert Andrew & Co

41	Also, because the terms of the present order are inconclusive, the subject matter may include the earlier reference to personal accounts for the last three years.  We set aside the order for disclosure and remit on the basis we have indicated.