Lundy & Anor v GPMU & Ors [1998] UKEAT 1337_98_1512 (15 December 1998)

JUDGMENT Revised © Copyright 1998 APPEARANCES For the Appellants MR D MARKS (of Counsel) Dickinson Dees St Anns Wharf 112 Quayside Newcastle upon Tyne NE99 1SB For the Respondents MR J. BOWERS QC Eversheds (3rd Respondents) Sun Alliance House 35 Mosley Street Newcastle upon Tyne NE1 1XX First and Second Respondents neither present nor represented JUDGE PETER CLARK: In this matter , which is currently proceeding in the Newcastle Employment Tribunal, the Applicants are first, the GPMU, a trade union (the Union) and secondly 9 former employees of Crawford Bros (Newcastle) Limited (Crawford) a company in liquidation. That company is the first Respondent to the complaints brought by the Union and the former employees, who were at the material time members of the Union, and is taking no part in the proceedings. The second Respondents to the complaint are Mr Lundy and Mr Kings, who were appointed administrative receivers of Crawford (the Receivers). The third Respondent is CB Print Finishers Limited (CB), a company formed to acquire the business of Crawford. The nature of the Union's complaint appears to include a claim that following the Receivers appointment on 17 March 1997; the Union having been previously recognised by Crawford for collective bargaining purposes, they dismissed members of the Union without first consulting the Union in breach of Section 188 of the Trade Union and Labour Relations Consolidation Act 1992. The individual applicants complained of unfair dismissal, and a failure to provide written reasons for dismissal. By their Notice of Appearance the Receivers deny that they adopted the contracts of employment made between the individual applicants and Crawford, but if they did, the rely on Section 44(2A) of the Insolvency Act 1986 as amended and submit that the claims brought against them are not "qualifying liabilities". At a directions hearing held before a Chairman, Mr P G Rennie, sitting alone on 9 September 1998, the Receivers applied for an order that there be a separate hearing of a preliminary issue limited to the "qualifying liability" point. That was opposed by the applicants and by CB. The Chairman rejected the Receivers application, but directed that it would be open to them to renew their application for a preliminary hearing at the start of the substantive hearing of the matter, estimated to last 5 days and listed to commence on 27 January 1999. It is against that direction that the Receivers bring this appeal. At the outset, Mr Marks applied for an adjournment of this appeal on the grounds that a concluded compromise agreement had been reached between the Receivers and the Applicants. If it has, we were not shown a compromise agreement reached with the individual applicants complying with Section 203 of the Employment Rights Act 1996 . In any event, the issue as to whether any binding agreement has been reached between those parties does not bear on the short procedural point raised in this appeal. Further CB, through Counsel Mr Bowers QC are present today to resist the appeal, not least in the light of a fax from the Receivers solicitors yesterday which referred to the alleged compromise agreement, and indicated that they would be proceeding with today's hearing. Mr Marks, on behalf of the Receivers, has submitted that they have a complete answer to these complaints, based on Section 44 of the Insolvency Act 1994 as amended. The Applicants are not represented before us today, although we have seen short written submissions from their solicitor. Mr Bowers, whilst not instructed on behalf of the Applicants, has assisted us to the extent that we are not convinced that Mr Marks is necessarily correct in his proposition. We say no more, since we are not seized of the merits of the point which he takes. We revert to the issue in this appeal. We have no general power of review of Employment Tribunal interlocutory orders. The Appellant must first establish an error of law in the Chairman's exercise of his discretion. Quite simply, the Receivers have not discharged that burden. The only specific point made by Mr Marks is that the Chairman was wrong to take into account possible delay in this case by ordering a separate preliminary hearing of the Receivers point on Section 44 of the Insolvency Act ; we cannot agree. Mr Marks tells us that 18 months is not a long time in insolvency law; that may be; it is in Employment Tribunal cases. Looking at the general question of perversity, we can well see why the Chairman, sitting alone, directed that it should be for the full Employment Tribunal seized of the whole matter to determine how the case may best be disposed of. That conclusion plainly fell within the proper exercise of his discretion. In these circumstances, this appeal is dismissed. Costs Mr Bowers has applied on behalf of CB for the costs in this appeal and the Applicants make a similar application in paragraph 6 of their written submissions. Mr Bowers relies on Rule 34 of the Employment Appeal Tribunal Rules. He says that this was a wholly unnecessary appeal, it raises no issue of law. We entirely agree. In these circumstances, the Receivers will pay the taxed costs in this appeal of both the Applicants and CB to be taxed if not agreed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII