The claimant brought a complaint of age discrimination to the ET. The respondent requested that the case be transferred from the Glasgow Employment Tribunal to the Manchester Employment Tribunal but the claimant's solicitors failed to respond to several letters sent by the Glasgow ET. Eventually the claim was struck out on the grounds that it had not been actively pursued. The solicitors then sought a review of the decision to strike out the claim, this application being received on the last possible day. No reasons were given in the application but eventually they did explain that the solicitor in charge of the claimant's case had been ill and that was why the claim had not been dealt with properly. The EJ revoked the strike out order at the review hearing, recognising that the solicitors should certainly have taken steps to deal with the problem; that the solicitors failings were serious and distinctly unsatisfactory; that strike-out was a draconian step; that prejudice was not a particular issue in the case; and that, while he was not satisfied that any letter was sent to the Tribunal by the deadline, he seemed to have accepted that a letter was written that day, which would have met the deadline. The respondent appealed.

The EAT, although recognising why the appeal was brought, and fully understanding why there had been such concern regarding the solicitor's handling of this case, dismissed the appeal. They were not satisfied that no reasonable EJ would have refused the application for review.
______________________

Appeal No. UKEATS/0056/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 23 March 2012

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

MITIE CLEANING AND ENVIRONMENTAL SERVICES LTD (APPELLANT)

MR STUART CHALLINOR (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS K BOYLE (of Counsel)

Instructed by:
MITIE Cleaning & Environmental Services Ltd
MITIE House
35 Duchess Road
Rutherglen
Glasgow
G73 1AU

For the Respondent
MR R BUDGEN (Solicitor)

Carter Moore Solicitors
13 St John Street
Manchester
M3 4DQ

PRACTICE AND PROCEDURE – Striking-out/dismissal. Circumstances where open to Employment Judge to revoke strike out despite serious failure to progress claim. Observations on nature and extent of solicitor's failings.

1. This case comes before me today as an appeal from the judgment of the Employment Judge sitting at Glasgow, Employment Judge Gall, registered on 9 September 2011, revoking his earlier decision to strike out this claim. That was following a review hearing, which took place on 5 September 2011.

1. Turning to the background in this case, on 15 March 2011, the Claimant presented a form ET1 to the Employment Tribunal in Glasgow in which he claimed he had been the victim of age discrimination. On 14 April 2011, the Tribunal confirmed acceptance of the response, which had been presented in the usual form ET3. At part 6.1 of the ET3, the Respondents had requested that the case be transferred to the Manchester Employment Tribunal. On 19 April 2011, the Tribunal wrote to the Claimant's solicitors, Messrs Carter Moore, asking for comments regarding the request to transfer the case to Manchester. There was no response to that letter and on 6 May 2011 the Tribunal sent a reminder. In that letter, they advised that the Employment Judge was disappointed not to have received a reply and specifically asked for a response within seven days. No such response was provided. On 17 May 2011, the Tribunal wrote again. In that letter it was stated that the Employment Judge was very concerned not to have received a reply and a strike-out warning was given if no substantive reply was provided within seven days. That letter was not replied to.

1. On 25 May 2011, the Employment Tribunal wrote to Carter Moore again saying that strike-out was being considered by the Employment Judge and giving the solicitors until 8 June to respond. No response was sent to the Employment Tribunal by that date. Throughout that period, the solicitor at Carter Moore responsible for the case was Mr A Pavey.

1. On 13 June 2011, a judgment was registered, striking out the claim on the grounds that it had not been actively pursued; that is, the case was struck out under and in terms of Rule 18(7)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

1. On 27 June 2011, which was the last day on which a review could competently be sought under Rules 34 and 35 of the 2004 Rules, Carter Moore wrote to the Employment Tribunal asking for a review of the strike-out judgment. No reasons were given in that application letter.

1. By this stage, a conflict of interest between Carter Moore and their client would appear to have arisen, given that the claim, having been struck out entirely due to their failures; he would have had a prima facie and apparently unanswerable claim against them for negligence. It is very surprising, to say the least, that they did not resign agency there and then and tell their client to seek separate advice.

1. On 11 July 2011, the Employment Tribunal wrote to Carter Moore asking for the basis on which review was sought. I pause there only to observe that the Tribunal had no obligation to write asking for further specification of the basis for review; it was incumbent upon the solicitors, when applying for review, to set out the basis, and it would have been open to the Tribunal at that stage simply to refuse the application on the basis that no justification for the application was advanced. They are indeed fortunate that the Tribunal did not do so at that stage.

1. By letter dated 15 July 2011, Carter Moore wrote to the Tribunal referring to a letter of 8 June 2011 and saying that to review the strike-out judgment would be in the interests of justice. By letter dated 21 July 2011, the Tribunal observed that once more no explanation was given as to why the interests of justice supported review. They did proceed to ask whether Carter Moore were seeking a hearing or whether they were happy to proceed by way of written representations.

1. By email of 26 July 2011, the Respondents emailed opposition to the application. Put shortly, their approach was that it appeared that the Claimant could not be bothered to conduct his claim properly and the appeal should fail; the case plainly had not been actively pursued.

1. By letter dated 8 August 2011, Carter Moore wrote to the Employment Tribunal setting out the reasons why they sought review of the strike-out decision. By this time, Mr Pavey had left Carter Moore, and Mr Rupert Budgen, who appeared before me today, was acting for the Claimant. The explanation given included the following: Mr Pavey had now left the firm; Mr Pavey had had serious ill health; he had a very serious "spinal difficulty" - no further specification of the nature of the difficulty is given in the letter; the difficulty had caused Mr Pavey extreme pain at times; he could not concentrate when it flared up; he attempted to soldier on; he could not conduct his cases in an efficient manner; there was no prejudice to the Respondent; the substantive question regarding transfer to Manchester had now been answered. No medical report, certificate or other document to vouch Mr Pavey's alleged ill health, such as an affidavit from him, was sent with the letter.

1. Mr Budgen, I was advised, had joined the firm at that time, literally the day after Mr Pavey left. Accordingly, anything he said about the difficulties that Mr Pavey had suffered must have been difficulties that were reported to him by somebody else in the firm, who it would appear was aware of them at the time.

1. On 5 September 2011, the review hearing took place and the strike-out was revoked. Put shortly, the Employment Judge's reasoning involved him recognising that the solicitors should certainly have taken steps to deal with the problem; that the solicitors failings were serious and distinctly unsatisfactory; that strike-out is a draconian step; that prejudice was not a particular issue in the case; and that, while he was not satisfied that any letter was sent to the Tribunal by the deadline of 8 June 2011, he seems at paragraph 10 to accept that a letter was written that day, which would have met the deadline. That, I have to say, is the only sense I can make of the sentence towards the end of paragraph 10, which reads:

"If it had been received then the strike out Judgment would not have been issued, it seems to me in that there was a reply, albeit a last minute one in terms of the deadline set."

1. The Employment Judge makes clear that he decided to revoke the strike-out only after considerable hesitation. On 23 September 2011, the case was transferred to the Manchester Employment Tribunal.

1. I would add that there is, in the bundle before me, and there was passed up to the Employment Judge at the hearing on 5 September 2011, a letter from Carter Moore, written by Mr Pavey, appearing to be dated 8 June 2011, and responding to the Employment Tribunal's letter of 25 May 2011, by indicating that, "[…] the representative dealing with this matter has recently suffered ill health and has been away from work" that he had returned to work and would be dealing with the matter, and that it was agreed that the case should be transferred to Manchester.

1. In their Notice of Appeal, the Respondents aver that the Employment Judge's decision was somewhat fundamentally wrong, made absolutely no sense, and was perverse. It was noted that the Employment Judge recognised the solicitors were at fault; the Respondent had dealt properly with the case; no reasonable Tribunal could have decided as the Employment Judge did; the blame lay wholly at the door of the solicitor; one would expect them to have provision to deal with staff illness; the lack of communication with the Employment Tribunal was over a period of two months; there was no evidence to support the claim that the solicitor was ill. The Claimant should simply sue his solicitor.

1. At the hearing before me today, the Respondents were represented by Ms Karen Boyle of counsel. She submitted that the default in this case was in the first of the two Birkett v James [1978] AC 297 categories, namely intentional and contumelious default; prejudice was not relevant, albeit that delay of itself was prejudicial and there had been some five months of delay between the Tribunal letter in April and the hearing before the Employment Judge in September. She relied on the case of Rolls-Royce Plc v Riddle [2008] IRLR 873, particularly paragraphs 20, 31 and 32. As there, in this case, there had been very little examination of the quality of the conduct by the solicitor. There was no evidence about the medical condition of Mr Pavey; there was no evidence about the steps that could or ought to have been taken by the solicitors' firm.

1. The Employment Judge was evidently satisfied that no letter was sent to the Employment Tribunal on 8 June. The solicitors still delayed when it came to seeking review; they left it until the last day, and even then they did not give any specification of the basis on which review was sought. The Employment Judge should have recognised that delay of itself amounted to prejudice. She made that submission under reference to O'Shea v Immediate Sound Services [1986] ICR 598. All these features together, it was said, showed that the only option open to the Employment Judge was to refuse the application for review.

1. Turning to Mr Budgen's submissions, he, surprisingly, could not see that there was any question of a possibility of there being or having been a conflict of interest between the Claimant and his firm. He sought to assure me that he considered himself able properly to represent the Claimant's interests. Otherwise, he confirmed that there was no evidence of a letter dated 8 June 2011 ever being sent to the Tribunal; he apologised for the failings of the firm; it had not occurred to him to provide a medical certificate. It was, he said, a close-run thing before the Employment Judge at the hearing in September; however, absent perversity, the decision could not be interfered with; perversity was a high test. He referred to Yeboah v Crofton [2002] EWCA Civ 794; there had been no perversity demonstrated in this case.

1. Turning to my decision, to say that the handling of this claim by this firm of solicitors, Carter Moore, thus far, cannot be a cause for pride is a gross understatement. Their failings were indeed serious and distinctly unsatisfactory, and I have to say that I was not wholly assured by Mr Budgen's attitude today that even yet they fully appreciate how seriously deficient their conduct was. If Mr Pavey was ill, that was unfortunate for him, and he would no doubt, if that was the case, have been in need of care and attention. However, when one looks at matters from the point of view of the client, of the Employment Tribunal, and of the Respondent, the fact of any illness and difficulties on his part merely elevates the responsibility of Carter Moore to see to it that the duties requiring to be fulfilled, including actively pursuing their client's claim, were attended to effectively and efficiently, notwithstanding any difficulties that any such illness presented. I reiterate my surprise that it does not appear to have occurred to anyone within the firm that a conflict of interest as between them and their client arose once it became apparent that they had failed to respond to the tribunal in the face of repeated strike out warnings.

1. The Employment Judge recognised that the solicitors had failed to actively pursue the claimant's claim, as is evident from his Judgment. He was also well aware of the nature and extent of the default and of the delay occasioned. He proceeded on the basis that no letter of 8 June 2011 was sent, which was the correct approach. While some Employment Judges may not have given Mr Pavey the benefit (if benefit it was) of the Employment Judge considering that perhaps at least a letter was written on that day, it does not appear to have weighed particularly with the Employment Judge here.

1. Whether or not to review any decision made by an Employment Judge, including a decision to strike out a claim, is a matter of discretion. That is plain from the terms of Rule 34. That discretion is unfettered, as I indicated in the case of Rolls-Royce, a wide range of circumstances will usually require to be taken into account according to the particular features of the individual claim.

1. Before I could interfere with the Employment Judge's exercise of that discretion, I would have to be satisfied that he relied on an irrelevant factor, or that he failed to take account of some relevant factor, or that in some other way he reached a decision that no reasonable Employment Judge could in all the circumstances have reached.

1. The appeal before me has really focused ultimately only on the third of these, namely that overall the decision of the Employment Judge was one that no reasonable Employment Judge could have reached. I am confident that many, if not most, Employment Judges would have refused the application for review, very much for the reasons advanced today by Ms Boyle. I however have to be satisfied that no reasonable Employment Judge would have done so and in all the circumstances I do not see how I could arrive at that conclusion.

1. It follows that I must refuse this appeal, but I do so while recognising that I can fully understand why it was brought, and fully understand why there has been such concern regarding the solicitor's handling of this case, as was expressed by the Employment Judge, and reflected in the remarks that I have made today.