The claimant was a footballer and initially his claim was against the club and the co-respondent, the Chair of the club, but all response to the claims went through the club so there was a question over whether the Chair was a party. At a CMD the judge found that the Chair was a party but his counsel did not know whether his client would be available for the planned December hearing; an application for 7 days to confirm with the client was refused. At a later hearing though the judge recorded that the date had been agreed and refused a postponement on that ground.

In this judgment HHJ McMullen identifies that this was a fundamental mistake of fact: the judge was mistaken that there was an agreement on dates and that he had therefore taken an irrelevant factor into consideration. That was sufficient to set aside the decision. He also notes that the initial CMD decision and subsequent further refusals were inextricably linked so a submission for the claimant that the appeal was out of time was rejected: indeed HHJ McMullen would have in any event used his discretion to extend time if that had not been the case.
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Appeal Nos. UKEAT/0625/11/RN

UKEAT/0626/11/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 8 December 2011

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

(1) GILLINGHAM FOOTBALL CLUB; (2) MR P SCALLY (APPELLANTS)

MR M McCAMMON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellants

MR MICHAEL DUGGAN (of Counsel)

Instructed by:
Bolt Burdon Solicitors
Providence House
Providence Place
London
N1 0NT

For the Respondent
MR RAD KOHANZAD (of Counsel)

Instructed by:
VLS Solicitors
Gibson House
800 High Road
London
N17 9DH

PRACTICE AND PROCEDURE – Postponement or stay

The four decisions of Employment Judges to order, and to refuse to postpone, a 5 day hearing were set aside. The Employment Judges took account of an incorrect factor, holding that the Appellants had agreed the dates when they had not. On the parties' agreement that the EAT should now decide the matter, on the full material today, the application for a postponement was allowed. Costs awarded to the Respondent under Employment Tribunal rule 40(1) and EAT rule 34A(2)(c) as the postponement had been caused by the Appellants.

1. This case is about an application to postpone a five day hearing scheduled for 15 December at Ashford, Kent. It was the subject of four separate decisions. I will refer to the parties as the Claimant and the Respondents, who are Gillingham Football Club ("the Club") and its Chairman, Mr Paul Scally. The parties are represented respectively by Mr Michael Duggan and Mr Rad Kohanzad.

1. It arises out of an appeal by Mr Scally, and effectively the Club, against orders that the hearing would take place next week. The appeal is made in form against two orders, or maybe three, but they are all focused on one issue which is the listing of this case. The Respondents appealed. The papers came before HHJ Peter Clark. He decided that this was a matter of discretion, the relevant materials were available to the respective judges, and saw no reasonable prospect of success.

1. Yesterday, at an expedited hearing, I heard Mr Duggan and considered this matter should go to a full hearing because this building closes today and because of the imminence of the trial next week and, the departure of Mr Scally for New York from Dubai, on Saturday. The only practical date is today. So I invited the parties to use their best endeavours to try and get this case together. Neither party has suffered from that. Indeed, I have had exemplary written and oral arguments from both counsel. The parties have done remarkably well to scramble for this hearing today.

1. The decisions are contained in a case management direction given by Employment Judge Vowles on 28 July 2011, where the Claimant was represented by Mr Owolabi, who is a paralegal in the Claimant's solicitors' and who has conducted this matter and, indeed, is here today, and Mr Naran De Silva represented both of the Respondents. The decisions made at that hearing were sent on 3 August 2011. It provoked an application on 18 August for a postponement and that generated a response by Employment Judge Vowles, dated 26 August 2011, in the following terms:

"Employment Judge Vowles has considered your request to postpone the hearing and has refused it because: The date of hearing was agreed by the Respondent's counsel at the Hearing on 28/7/11. The list of available dates is extensive and unreasonable. The case remains listed for 15 to 21 December 2001."

1. It should be noted that the CMD order has within it the opportunity for the parties to apply to vary the terms of the order. Judge Vowles' refusal generated a second application. This came before Employment Judge Druce on the papers, who:

"[…] refused it because the details of the booking should have been made available for the Case Management Discussion.

The case remains listed […]"

1. That generated a third application which came back before Employment Judge Vowles, who said the following:

"'The Respondent's further application for a postponement is refused. It has already been refused on two previous occasions. The notice of Case Management Discussion sent to the parties on 8 July 2011 made clear that they must be able to discuss the fixing of a date for the Hearing and must know any dates to avoid. No such dates were notified at the Case Management Discussion on 28 July 2011. The Claimant has previously objected to an earlier application and indicated its own difficulties if the date was changed. The Tribunal is not preventing the 2nd Respondent from attending the Hearing. It is entirely a matter for him to decide whether to attend.'"

1. The case is due to be heard next week.

1. The Claimant is a professional footballer who has been dismissed by the League Two Club, whose Chairman and key figure in the claim form is Mr Scally. The claim is of unfair dismissal and race discrimination. The claim was entered on 29 April 2011. As for Mr Scally, he booked a holiday of a lifetime with his young family on 27 September 2010. The incidents relevant to the claim occurred after that.

1. Final confirmation was received by Mr Scally as to his trip on 11 June 2011, requiring him and his family to fly to New York from Dubai where he lives. The trip is from 10 December to 2 January. In response to the claim form in which both Mr Scally and the Club appear in the box marked Respondent, the grounds of resistance are made only by the Club. I accept Mr Duggan's contention that there was an issue as to whether Mr Scally was himself a Respondent. As is proper in a long and complicated discrimination case, a CMD was ordered.

1. The notice was sent on 8 July 2011 to solicitors representing the Club and the Claimant. The Club is cited as the Respondent. The notice includes notes that "you should come with Hearing dates and dates to avoid, having canvassed those with your witnesses and legal representatives". As Mr Duggan engagingly says, "woe betide a party who does not".

1. The outcome of the CMD was the fixing of the dates. The problem which arose was apparent to solicitors for both parties, for the Claimant within days sought to vacate the CMD which, by that notice, had been scheduled for 28 July 2011. Very quickly agreement to that proposition was advanced by the Club solicitors and, by about 15 July 2011, I can well understand both solicitors feeling confident that they had achieved a postponement of the CMD.

1. In the late afternoon of 27 July 2011, the only response to that unopposed application was received by the solicitors. At that stage, counsel had not been booked. Mr De Silva, then counsel in the case, did not have it in his diary. It was put in his diary and he attended. Both solicitors were very surprised that the Tribunal had taken the step it did. As both counsel accept before me, that is the responsibility of the Tribunal. Just because parties put forward an unopposed or a joint application does not mean that it will be acceded to, and no criticism can be made of the judge for deciding to have a CMD.

1. At that time, I find that Mr Scally was not a party. That is plain from the discussion as to whether he should be taken out and from the notice sent to him. The clear finding by the judge is that on that date, Mr Scally became a party. On that date he was not aware of the December hearing and had not provided any dates to avoid. I accept from Mr Kohanzad that he is a key player, and whether he is a party or not, it simply means he would be there. Nevertheless, Judge Vowles made the specific point that by making him a party, he was liable to a substantial remedy, should any of the discrimination points succeed.

1. The date was imposed on the parties. Counsel who was there knew that he himself was available for the December hearing, but he told the judge that he did not have dates for Mr Scally and Mr Scally was not contacted or contactable that day. Counsel asked for a further seven days in which to clarify the matter but that was refused. The judge decided himself on this date, without the express agreement of the parties. Mr Kohanzad realistically accepts that that is what occurred.

1. The problem is that when the matter came back before Judge Vowles on 26 August 2011, he recorded that the Respondent had agreed. That is one of two reasons the judge gave for refusing the application. It certainly was the judge's view on that date and he had read the CMD order, which records the same. As Mr Kohanzad concedes, that is not the case. There was no agreement on behalf of Mr Scally, or indeed on behalf of the Club, as to the five day fixture in December.

1. In the course of very extensive and measured grounds of application, the issue of the unavailable dates as to which there were a lot, was dropped, the Respondent accepting that it would change counsel instructed, in order to be available. The second application was turned down by Judge Druce who had all of the material before him, since it is provided as background. The third application was turned down by Judge Vowles as I have said.

1. The criticism that he makes is that the parties did not come with a date for the hearing and counsel ought to have known the dates to avoid. He also makes the comment, which is described as being an expression of his irritation, that it is entirely a matter for Mr Scally to decide whether to attend. That, in my judgement, is a little unfair. It is, of course, open to him not to join his family or to cancel their holiday and to go to Ashford instead. But it is not really a matter of choice for him, given that he is now a party and that he has the exposure which Judge Vowles identified. He is, in any event, as Chairman of the Club, the principal vehicle for its case on unfair dismissal.

1. The parties before me are agreed on the application of the law. It is contained in Jacobson v Norsalta Ltd [1977] ICR 189, Bastick v James Lane (Turf Accountants) [1979] ICR 778, Carter v Credit Change [1979] IRLR 361 and in the Judgment of the Court of Appeal, upholding my Judgment, overturning an Employment Judge on a matter of discretion, in Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740, in the authorities cited by Wall LJ, principally G v G.

1. The gist of that massy learning is that when a judge has considered the relevant factors and taken account of no irrelevant factor and understands the law which he is applying, an appellate court will not be entitled to intervene unless the decision is so obviously wrong in principal.

1. I accept Mr Duggan's submission that the judge considered an irrelevant factor. That is plain both from the CMD and from Judge Vowles' first refusal. He was clear that the Respondent had agreed these dates. That, in my judgement, is sufficient to set aside his Judgment. There is a problem, advanced by Mr Kohanzad, as to whether an appeal is in time, but it seems to me that the three decisions, respectively of Judge Vowles, Judge Druce and Judge Vowles (again) are all inextricably linked.

1. None of the subsequent decisions makes sense without looking at the CMD and the first refusal by Judge Vowles. I hold that any submission that the appeal is out of time would fail, but if Mr Kohanzad is right, then I would exercise discretion, in the exceptional circumstances of this case, since all four decisions are linked and make one point.

1. With respect, HHJ Peter Clark took the same view about the decision making in this case as having been the substance of an agreement. Now that I have looked at the matter more carefully than was available to him, it appears to me that there is a fundamental mistake of fact. Mistakes of fact do not usually generate proper grounds of appeal, but this is properly depicted by Mr Duggan as the consideration of an irrelevant factor. In Judge Vowles' decision, there are only two factors. One is the agreement and the second is that the list of unavailable dates is too long. That has fallen away now.

1. It is most unusual for a court to be entitled to interfere with the exercise of discretion, but the clear entitlement does arise where an irrelevant factor has been considered. The judge was mistaken. I could well understand the firmness of his view, had there indeed been an agreement. But even so, the order on the CMD does give a liberty to seek to change it.

1. This is not a case where the judge has not considered relevant factors. Mr Kohanzad is right about that. This is a very simple case. The judge had in mind the holiday of a lifetime and problems of delay, relevant factors. The defect in his reasoning is to rely on the agreement.

1. In those circumstances, I will set aside the four orders of the three judges and of the CMD. They are, effectively, to set aside the decision that the case go ahead on Thursday.

1. I have identified an error of law. Both counsel should this occur, said in advance that they would wish me to decide the matter rather than send the matter back to Ashford for another judge to decide. If I may say, that is a pragmatic approach. It is in accordance, also, with the overriding objective. I will now consider afresh the application as to the hearing next week.

1. I have heard submissions from counsel. The issue now is for me to decide on the material which is available today, as to whether the hearing should go ahead next week. In my judgement, this is wholly impractical. A bundle has been agreed, but in order to take Mr Scally's instructions on it, he would have to be prepared and briefed for the hearing next week and he is now on his way to New York via Dubai.

1. The suggestion that he would come to the early part of the case, but not the second part, would impose a straightjacket upon him. This is the kind of case which cries out for him to be in attendance throughout, not just for him to dip in and give his evidence, be cross-examined and leave, but also to hear what the Claimant says about him. As Mr Kohanzad said, he is central to it. Mr Scally as an individual Respondent and a key figure in the Club's case, would be well advised to attend throughout.

1. It is not practicable at this stage to decide on who opens the case. This is an unfair dismissal case; the Club would go first. On the other hand, it is a discrimination case; the Claimant would go first. As to whether or not a live hook-up to New York is possible, I accept Mr Duggan's proposition that this is a very fact-sensitive case on which much credibility stands, of both of the individual parties, and it would be very difficult for the three-person Tribunal to accept this material through a TV link to New York.

1. The parties could, of course, agree extensions of time. Witness statements are due today. That could be done.

1. Turning to the Claimant, he is training for another club in League 2. He is 31. I have had at the forefront of my mind the importance of a speedy remedy for a young man in this position, where career in football tends to be short-lived. He wants this matter resolved most quickly. In my judgement, justice cannot be done to this case by starting it on Thursday, in the circumstances with which I am now presented.

1. What is required are dates to be agreed between the parties as to availability and a joint approach to be made to the Tribunal so that the Club, Mr Scally and the Claimant, with whatever witnesses they need, are all available to do this once and for all in a five-day continuous hearing. I have set aside the order of the judge and, for the reasons which I have given, the application to postpone the hearing next week is allowed.

1. An application has been made by Mr Kohanzad for costs. Some of these I regard as unreasonable, such as the payment his chambers would call for, for the abandonment of next week's case. The principle is that a case which has been postponed will come to life again and the work that has been put in will be utilised whenever this case comes on in Ashford. Mr Kohanzad, with his fingerprints all over this case, may be confident that he will be the barrister instructed to do it and, in which case, the hole in his diary in the week before Christmas will be rectified later in the year.

1. What I am concerned with are the costs of today. The unusual feature of this case is that while costs are only exceptionally ordered in the ET and the EAT, under the non-pejorative parts of both our rules, that is rule 40(1) in the ET, and rule 34A(2)(c) in the EAT, costs may be awarded where a party has caused a postponement or an adjournment, which is what has happened.

1. Mr Scally and the Club have come to seek a postponement and have achieved it. It has taken a while, but they have been persistent and they have got what they want. In my judgement, costs can properly be awarded here without any of the pejorative epithets (vexatious, unreasonable) and the figure will be £1,250 plus VAT. I do not consider the paralegal costs of five hours to be reasonable. Mr Duggan does not object to the payment of his rate, nor of Mr Kohanzad's brief fee so the figure will be £1,250 plus VAT.