Appeal No. UKEAT/0728/04/DA & EAT/0729/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 February 2005

Before
HIS HONOUR JUDGE J R REID QC
MR B BEYNON
MR M WORTHINGTON

MRS S E COLDRIDGE	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ANTHONY COLDRIDGE
(Representative)	

SUMMARY

Time Limits/ Practice and Procedure

Preliminary hearing.  Issues as to extension of time, whether proceedings were issued in time, and disclosure.

HIS HONOUR JUDGE J R REID QC

1.	This is the preliminary hearing of two appeals.  They are appeals from decisions of an Employment Tribunal held at Southampton.  The first of those was on an interlocutory or case management hearing at which the Tribunal leniently decided that it would not strike out the Applicant’s claim for failure to comply with Directions as to further and better particulars, but made an order for costs against the Claimant and, secondly, refused to order disclosure of a medical report which was intended to have been obtained by the parties jointly from a single joint expert, but which appears in the event to have ended up as a report to the Respondents alone.

2.	So far as that second point is concerned, it seems to us that there is an argument for saying that that document should be disclosed, if only because it would go to quantum in relation to the amount of any award that might be made were the Claimant to succeed in her Disability Discrimination Act claim.  We therefore at this stage give permission for that part of the appeal to go to a full hearing.  At the full hearing, it will no doubt take second string to the substantive appeal arising out of the second of the matters we have to deal with.

3.	As to the appeal in relation to costs, it does not seem to us that this is an appropriate case in which permission should be given to go to a full hearing.  It does not seem to us that there any grounds in law upon which the decision of the Tribunal could properly be challenged.  The decision arose out of the manner in which the Claimant, through her solicitor who is also her son, had conducted the proceedings.  The Tribunal went through an extremely lengthy history of failure by the Applicant and her legal advisor to comply with Directions.

4.	I should say in passing that even since that decision there has been a persistent failure to comply with time limits right down to the fact that the Skeleton Arguments for this appeal was served out of time, notwithstanding warnings from His Honour Judge Ansell on the Rule 3(10) strike out appeal as to possible dire consequences in the event of further failures to comply with time limits.  But at present these proceedings remain in being at least in the sense that they have not been struck out for failure to comply with the Rules.

5.	The position was that the Tribunal carefully went through the provisions of Rule 14.  They took the view that the manner in which the proceedings had been conducted did fall within that Rules.  They made a comparatively modest order for costs.  They did that because the Chairman took the view that the hearing had been occasioned in effect entirely by the Applicant’s failure to comply with earlier orders.

6.	True it is the proceedings were designated as a case management conference and that there was the further briefly dealt with point as to disclosure, but it is clear that the Chairman had that well in mind when he made his order for costs, not least because he dealt with the order for costs before dealing with the application for disclosure.  It’s been urged upon us that this would be a case in which the Tribunal was penalising an Applicant rather than merely reimbursing a Respondent for unnecessarily incurred costs and that we should not do so because this was a case in which it was very difficult, given the disability of the Claimant, for her to give the instructions necessary to comply with the Directions orders which have been given.  All of those, of course, were matters which were well in the minds of the Tribunal.  There is no error of law and it would not be appropriate for that matter to go to a full hearing.  Thus, so far as the first of the two appeals is concerned the only matter which will go to a full hearing is the disclosure question.

7.	As to the second of the appeals, a substantial number of points were taken.  This appeal arises out of the fact that the Tribunal at the preliminary hearing of a preliminary point held that the proceedings were not launched within time and refused to extend time.  There were a substantial number of points, seven in all, taken in the Skeleton Argument on behalf of the Appellant.  Only one of those points seems to us is worthy of going to a full hearing that is the point itemised at five (ground five), service of the IT1:

“The Tribunal was wrong in law, in finding that a Sunday (para 25.3 of extended reasons) should not be excluded as a day to be calculated for deemed service, see Anderton v Clywd County Council [2002] EWC Civ 933.”

That throws up a point to which the answer make well be apparent to another division of this Tribunal, but certainly needs to be made apparent for all.  The question is whether the deemed service provisions in the CPR apply, as it suggested by the solicitor for the Applicant, to attempts to institute proceedings by lodging papers with the Employment Tribunal.

8.	It is said and correctly said that there are criticisms in Anderton of passages in Sealy v Consignia plc [2002] 3 All ER 801 and for that matter in the Godwin case and that in those circumstances what Consignia decided can longer be taken as good law.  We think that is a matter which should be dealt once and for all by a full hearing in the Employment Appeal Tribunal.

9.	So far as the other points which were taken were concerned, first of all it was said that the application was made in time because the effective date of the termination of the Applicant’s employment was not 31 March, as the Tribunal held, but was some other date and the letter by which he was dismissed contained ambiguities.  In our judgment there was no ambiguity, her last day of service was said to be 31 March.  She herself took the letter as terminating her employment on 31 March and said so loud and clear by identifying 31 March, was the date of termination in her form IT1.

10.	Secondly, it was said that the Respondent had in some way estopped itself under the doctrine of promissory estoppel from taking a point.  This was a point which appears not to be raised in evidence below, but was raised in oral argument though it appears faintly.  In our judgment, even taking account (which we properly should not) of what the solicitor for the Applicant says by way of evidence he said before the Employment Tribunal, there was no basis on which any Tribunal could properly have held that there was either a partial compromise whereby the Prison Service abandoned their reliance on the time point or by which it could be said that was any act or omission by the Prison Service relied on by the Applicant, so as to give rise to an estoppel of any form.  Similarly, that point is not one which should be allowed to go to a full hearing.

11.	Thirdly it was said that it was not reasonably practicable for the Applicant to bring proceedings in time and she took all such steps as were reasonably practicable.  That was an issue of fact.  There was some attempt to service on the last available day.  Those attempts at the end of the afternoon, in a pretty half hearted manner by fax, were considered in detail by the Tribunal who made detailed findings of fact, relating in particular to the evidence given by the solicitor who has appeared before us whose evidence they found far from convincing.  In our judgment the findings of fact which were made and the conclusions drawn from them were matters that the Tribunal were perfectly entitled to find.  There is no basis on which an appeal could possibly be brought in relation to that.

12.	It was then said that the Applicant’s disability should have been taken into account.  It is clear that the Tribunal were well aware that she was disabled.  There was no evidence upon which it could have been said, as was candidly accepted by the solicitor appearing for her, that the Applicant was disabled to an extent which prevented her from ensuring that proceedings were launched within time.  There is no substance in that point, if even insofar as it was taken below.

13.	Then it was said that the delay was reasonable in the circumstances.  There was no basis upon which that could properly have been asserted, but it was also said that this was a case where the fault was that of the solicitors and that the delay was a very short delay.  In our judgment, those were all matters properly taken into account by the Tribunal.  There was no error of law discernable on the face of the record and in our judgment that again is a point which should not go to a full hearing.

14.	Then it is suggested that there was insufficient evidence of prejudice.  Again that was a matter for the Tribunal; we see no arguable error of law in relation to it.

15.	Finally it was said, that the Tribunal were wrong in failing to consider the prospects of success.  In our judgment, the Tribunal (it shines through) took a robust view and considered perfectly adequately all that was needed to by way of looking at the nature of the case and its prospects.  The result of this, is that so far as the claims other than sex discrimination is concerned, the matter will go to a full hearing under what I described as ground 5.  So far as, sex discrimination is concerned it will not go to a full hearing.  The last incident of sex discrimination relied on is some 14 months before the issue of the application and it was candidly accepted (after a bit of prodding of the solicitor appearing on behalf of the Applicant) that there was no evidence before the Tribunal which showed that the disability from which the Applicant was suffering, was such as to have prevented her from making her application under the Sex Discrimination Act 1975 within the appropriate three month period.
16.	It follows therefore that to the limited extent which I have indicated these two appeals will be permitted to go to a full hearing and I think it will follow from that standard directions in relation to those two matters should be given and unless Mr Collridge wishes to address us on those standards directions, I think that they will come out in the normal form in the order and I would have thought, subject to my colleagues corrections, that the appropriate directions as to time and category is to say half day, category C.