Appeal No. UKEAT/0055/12/MAA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 7 June 2012

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR R CUNNINGHAM	APPELLANT

AURORA KENDRICK JAMES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS A CARSE
(of Counsel)
Instructed by:
Tunbridge Wells CAB
31 Monson Road
Royal Tunbridge Wells
Kent
TN1 1LS	
For the Respondent	MR R CASE
(of Counsel)
Instructed by:
Brachers LLP Solicitors
Somerfield House
59 London Road
Maidstone
Kent
ME16 8JH	

SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Amendment

Judgment entered following Claimant’s failure to comply with unless order.  No application made to Employment Tribunal for relief from sanction.  Appeal against Rule 13(2) Judgment only.  No discretion in Employment Judge, who was bound to enter judgment.  Accordingly, appeal dismissed.

Late application to amend Notice of Appeal to challenge earlier ET unless order refused.  Application not made as soon as reasonably practicable; original Notice of Appeal out of time to challenge earlier order.  No grounds advanced for extending time.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This case has been proceeding in the Ashford Employment Tribunal.  The parties, as I shall describe them, are Mr Robert Cunningham, the Claimant, and Aurora Kendrick James Ltd, the Respondent.  I have before me for full hearing, on directions given on the paper sift by Langstaff P in an order dated 30 January 2012, an appeal by the Claimant against the Judgment of Employment Judge Pritchard, sent to the parties on 25 October 2011, striking out his claim for a failure to comply with paragraph 2 of that Judge’s unless order of 22 September 2011, as varied by a letter dated 3 October, in that he failed to serve his witness statement on the Respondent by 11 October, the extended date.  That Judgment was signed by the Employment Judge on 14 October.

2.	I should emphasise at the outset that no application was made to the Employment Tribunal for relief against sanction by way of a review of the strike‑out order.  The President directed that the Claimant should lodge a witness statement at the EAT not less than seven days before today’s hearing; a witness statement was finally lodged this morning.

Background
3.	The Claimant was employed by the Respondent as a junior software engineer from 20 March 2006 until his resignation on 16 September 2008.  On 24 October 2008 he lodged a form ET1 at the Tribunal complaining of constructive unfair dismissal, disability discrimination and breach of contract.  The claims were resisted by the Respondent on the grounds set out in their ET3 dated 25 November.

4.	The case has been listed for case management discussions (CMDs), Pre‑Hearing Reviews (PHRs) and a full hearing on various dates.  A full hearing fixed for 20 September 2011 did not proceed, in the absence of the Claimant; however, on that occasion Judge Pritchard made various unless orders, the material one being at paragraph 2 of his order of 22 September, to which I have earlier referred.  The Claimant had previously been directed to serve witness statements by orders dated 26 February 2009, 14 September 2010 and 5 May 2011.  Time for compliance was then fixed for 4 October, later extended by the letter of 3 October to 11 October.

5.	It is common ground that the Claimant did not serve his witness statement by 11 October.  It therefore followed, under Employment Tribunals (Constitution and Rules of Procedure) Regulations rule 13(2), that the claim was then automatically struck out.  A Judgment to that effect was made, as I have said, by Employment Judge Pritchard on 25 October 2011.

Automatic strike‑out
6.	Unlike strike‑out orders made under ET rule 18(7) (see, for example, Blockbuster v James [2006] IRLR 630), failure to comply with an unless order will lead to automatic strike‑out under rule 13(2).  The Employment Tribunal has no discretion at this point; see EB v BA UKEAT/0138‑9/08, 4 July 2008, Elias P, as he then was, at paragraph 18.  However, that may not be the end of the matter.  In Neary v Governing Body of St Albans School [2010] ICR 473, paragraph 5, Smith LJ observed that my view expressed in that case that a rule 13(2) strike‑out Judgment was reviewable was “not without difficulty”, but that view was not challenged before the Court of Appeal.  Whether it is strictly reviewable, as I still maintain, or is an order that may be revisited under ET rule 10(2), there is no doubt that on application or of its own motion the Tribunal may consider granting relief from sanction.  Examples include cases where an issue arises as to whether a party has in fact failed to comply with an unless order (not this case) or where the relief sought takes the form of revoking the original unless order or extending time for compliance.  I have been referred to a number of cases dealing with relief from sanction following a rule 3(2) strike‑out; chronologically, they are EB, Neary, Thind v Salvesen Logistics Ltd UKEAT/0487/09 (13 January 2010, Underhill P) Mustafa v Guy’s and St Thomas’ NHS Foundation Trust UKEAT/0516/11 (22 December 2011, Wilkie J) and Vanderpuye v Telefonica O2 UK UKEAT/0257‑8/11 (20 February 2012, HHJ McMullen QC).  What all of these cases have in common is that in each there was an automatic strike‑out under rule 13(2) followed by an application for relief from sanction.

The present appeal
7.	The critical distinction between the present case and the five cases I have just mentioned above is that here no application for relief from sanction was made to the Employment Tribunal, yet that is what, it seemed to me, Ms Carse, now appearing on behalf of the Claimant, sought from this appeal.  That raises the question of whether it is open to me to grant such relief either by way of allowing this appeal and granting that relief from sanction myself or by remitting the case to the Employment Tribunal to consider relief from sanction.  I leave aside the fact that this way of putting the Claimant’s case is not foreshadowed in the Notice of Appeal.

8.	Faced with the difficulty that this was an appeal only against an automatic strike‑out under rule 13(2), this morning Ms Carse applied for permission to amend the Notice of Appeal so as to challenge, in particular, Employment Judge Pritchard’s orders of 3 and 7 October, which collectively refused to revoke the unless order of 22 September.  That application was opposed by Mr Case, first on ordinary Khudados v Leggate and Ors [2005] IRLR 540 grounds and in particular that the application to amend was not made as soon as practicable; it was made only on the day of the appeal hearing, but more tellingly, in my judgement, the original Notice of Appeal was lodged on 1 December 2011.  It follows that any appeal against the orders of 3 and 7 October were out of time when the original Notice of Appeal was lodged.  Following the well‑known principles in cases such as United Arab Emirates v Abdelghafar [1995] ICR 65, Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 and Jurkowska v Hlmad Ltd [2008] ICR 841, there seems to be no good excuse for not appealing the earlier orders of 3 and 7 October in time.  Ms Carse points out that Mr Jefferies, who has provided advice to the Claimant since about late September 2011 (he is an employment case worker with the local Citizens Advice Bureau at Tunbridge Wells), needed time to take on board the complexities of this case.  That said, I have seen correspondence in early October from Mr Jefferies to the Employment Tribunal, and, in particular, I note in a letter of 12 October written to the Respondent’s solicitors that he ends that two‑page letter by saying:

“I’m instructed to prepare an appeal once I receive the Tribunal’s orders striking out the Claimant’s case pursuant to the unless order.”

9.	That is precisely what was done, but that appeal did not challenge the earlier orders of 3 and 7 October in time, nor was an application made, as it seems to me it ought to have been, to the Employment Tribunal for relief from sanction by way of review once the strike‑out Judgment was entered or by way of application under rule 10(2).

Conclusion
10.	In these circumstances, it seems to me the appeal is hopeless as against the Judgment of 25 October.  There was no discretion at that point in the process; the Judge was bound to enter Judgment, because it is common ground that paragraph 2 of the unless order requiring the Claimant to file a witness statement was not complied with within the extended timescale.  In these circumstances, I see no alternative but to dismiss this appeal.