Temple Security Services Ltd v Chay [1997] UKEAT 814_97_2611 (26 November 1997)

JUDGMENT PRELIMINARY HEARING © Copyright 1997 APPEARANCES For the Appellants MR R HEWISON (Personnel Manager) JUDGE B HARGROVE QC : This case presents a sorry situation of total incompetence in the way it has been handled. The Appellants say they did not receive notice of the proceedings and they did not enter an appearance. In the normal course of events, where cases such as this have to come before us, there are a number of matters which have to be placed before this Tribunal to satisfy us. First of all, why was no Notice of Appearance entered? Why did they not attend the hearing? Those matters are dealt with in the Practice Direction No.16 which is in these terms: "(1) If the Appellant in a case has not entered a Notice of Appearance before the Industrial Tribunal and has not applied to the Industrial Tribunal for an extension of time for doing so or has applied for such an extension and been refused it, the Notice of Appeal will be immediately set down to be heard as a preliminary hearing [that has happened now]. (2) The Appellant will not be permitted to pursue the appeal unless the EAT is satisfied at the preliminary hearing that: (1) there is a good excuse for failing to enter a Notice of Appearance and (if that be the case) for failing to apply for such an extension of time; and (2) there is a reasonably arguable defence to the claim in the Originating Application. (3) In order to satisfy the EAT on these matters, the Appellant must swear and lodge with the EAT an affidavit explaining in detail the circumstances in which there has been a failure to service a Notice of Appearance in time or apply for such an extension of time, the reason for that failure to do so and the facts and matters relied upon for contesting the claim on the merits. There should be exhibited to the affidavit all relevant documents and a completed draft Notice of Appearance (IT3)." What we have is no attempt to go back to the original Industrial Tribunal. When the staff of this Tribunal point out that an affidavit has been got to be sworn, and it is not sworn, a statutory declaration is made. It is made by Mr Hewison who has appeared before us. He tells us that he is the Personnel Manager and that other persons in the company have now, because there has been a movement following a take-over, those persons are no longer available. There are no documents, bar one short document, which appears to have been filled in by a payroll office and, in short, this is about as far from the proper and correct procedure as one could go. It was in our minds that this was the sort of case where, if litigants are so careless about the way in which they conduct their affairs, that they do not deserve any extension of discretion on the part of this Tribunal. We have however, having listened to Mr Hewison, accepted that on the balance of probabilities it is more likely than not that the original documents, by which I mean the IT1 and the Notice of Date of Hearing, have not reached, certainly, Mr Hewison, and in all probability, the company in general. In those circumstances, we turn to the question of whether there are matters which could be put forward as legitimate grounds for appealing against the findings. Having looked at those, we say no more than that they are not the most illuminating findings that we have ever seen. In those circumstances, and with very great reluctance, we are going to allow this matter to proceed to a full hearing. Let us make it clear however, that that is the end of the degree of laxity that we are going to permit in this Tribunal on the part of an Appellant. It would be unwise if this matter did not proceed from now onwards under the guidance of professional advice and any further deviations from the proper procedure will be punished by this matter being struck out. There will be further directions in these terms: First, the statutory declaration must be converted into an affidavit and all documents annexed to it and filed with this Tribunal. That includes all documents received at any time from the Industrial Tribunals, all replies thereto. The affidavit must also deal with enquiries made of all other departments within the Appellant's business, whether or not there has been any receipt of any other documents from the Industrial Tribunal. Secondly, there will be an Order that skeleton arguments, both sides, shall be filed and exchanged 28 days prior to the final hearing date. There will be a time estimate of one day, under Category C. The affidavit to be filed within 14 days. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII