Case No: A3/2009/1547
Neutral Citation Number: [2010] EWCA Civ 610
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
[HIS HONOUR JUDGE REID QC]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13th May, 2010

Before:

LORD JUSTICE MUMMERY

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Between:

**THOMPSON (Appellant)

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HOME OFFICE RESOURCES STRATEGIC CORE (Respondent)**

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(DAR Transcript of
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Mr P Ward (instructed by Messrs Reynolds Porter Chamberlain LLP) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment (As Approved by the Court)

Crown Copyright ©

**Lord Justice Mummery:  
**1.This is a renewed application for permission to appeal.  The application has been made by Mr Ward of counsel on behalf of the applicant, Miss G Thompson.  The decision which she wishes to appeal is that of the Employment Appeal Tribunal where His Honour Judge Reid QC sitting alone on 24th June 2009 dealt with the applicant's appeal under Rule 3.10 and dismissed it.  The applicant was appealing to the Employment Appeal Tribunal against the decision of the Employment Tribunal Sitting at London South on 26 June 2008.  In the reasons for the Tribunal's judgment (which were sent to the parties on 7 July 2008) the Employment Tribunal struck out the claim made by the applicant due to unreasonable conduct.  An attempt was then made to obtain permission to appeal from this court and that was dealt with on the papers by Sir Richard Buxton.  He refused to grant permission.   This is the oral hearing of a renewed application.

2.Permission will only be given for an appeal against the decision of an Employment Tribunal or Employment Appeal Tribunal if there is an arguable question of law.  There is no appeal against the facts, and it is also very difficult to appeal against the exercise of a discretion.  Tribunals are given wide discretion in the management of the huge number of cases which come before them every week.  It is only possible to appeal against an exercise of discretion if it can be shown that there is an error of principle in the way that the discretion was exercised or if the exercise of it was plainly wrong.  Before it can grant permission this court also has to be satisfied, if there is a question of law arising from the exercise of the discretion, it must be one that has a real prospect of success.  There really is no point in pursuing appeals through the process of this court if it appears that they are going to fail.  I will mention that that is particularly important for a reason relating to costs.  In the tribunals it is unusual to order an unsuccessful party to pay costs.  It usually has to be shown that there has been some unreasonable conduct of the case by the party who is ordered to pay the costs.  That is not the case in this court.  Once these employment cases arrive in the main court system the CPR Rules as to costs apply.  That would mean in a case such as this that, even if I gave permission to appeal, if that appeal were ultimately unsuccessful the normal order would be that the unsuccessful party pays the costs of the other side.  So in my experience applications for permission to appeal in employment cases do have to be very carefully considered since allowing appeals that are not going to succeed and have no real prospect of success to proceed further is exposing the person who is granted permission to a real risk of an adverse costs order.  On the other hand, if it is shown that there is a real prospect that it is right to grant permission, it will be for the applicant to decide whether or not to take the risk of costs in the event of failure.

3.In this case the background facts are that the applicant was employed from mid?2002 by the Home Office.  She is an executive officer in the Border & Immigration Agency at Croydon.  During the course of employment various matters occurred which led her to bring proceedings against the Home Office for race discrimination, harassment and victimisation.  She had alleged that she suffered ill?treatment from a fellow worker, Mr Henderson, and that the Home Office had failed to progress a formal grievance made by her.

4.The matter has never got as far as a substantive decision because the Employment Tribunal struck out the claim before hearing the evidence and deciding whether or not the applicant had a case.  That of course is a strong thing to do because the effect of the striking out order is to deprive a person of the opportunity to have a full hearing of their case on its merits.

5.What happened in this case was that the claim was presented against the Home Office in January 2008.  There was a pre?hearing review on 27 March 2008.  The Employment Tribunal struck out some of the applicant's allegations.  It said that they could not consider some of her complaints as she had failed to comply with the requirements of section 32 of the Employment Act 2002.  She was ordered to pay a £50 deposit as a condition of being allowed to continue to take part in the proceedings as it was not considered that her claim had a reasonable prospect of success.

6.On 31 March 2008 an order was given that included a requirement for the exchange of witness statements.  Those were attached to the order, making it clear that, if a party failed to comply with the court, the Tribunal could strike out the whole or part of the claim.  A further hearing was scheduled for 26 June 2008.  Three days before that the applicant suffered a panic attack at work that required an ambulance to be called and treatment to be administered.  As a result of the incident a friend of the applicant wrote to the Tribunal giving details of what had happened on 23 June.

7.The applicant did not attend the Employment Tribunal at the time when the hearing was listed on 26 June (that was 10am).  When contacted, she explained to the Tribunal she could not be present until after 2pm due to difficulties organising childcare.  The Tribunal reconvened at 2pm, but the applicant still had not arrived and so the hearing started.  The Home Office requested that the claim be struck out due to the applicant's failure to comply with obligations in relation to the service of witness statements as stipulated in the order of 31 March.  Alternatively the Home Office sought a short adjournment and a strict timetable to regulate the future conduct of the case.

8.At 2.30pm the applicant turned up.  The Employment Judge recounted the request that had been made by the Home Office.  The applicant addressed the Tribunal.  She explained that she had not thought that the hearing was to take place on that day.  The Employment Judge noted that it was immediately apparent that the applicant was suffering from a medical condition and, although it interrupted her submissions, it did not seem in itself to prevent her from saying what she wanted to say.  She was suffering from hiccups and a nervous tick.  The Employment Judge stated that the applicant made it very clear that she wished to proceed with the hearing.  At 3pm the Tribunal retired to consider what it should do and was informed shortly afterwards that the applicant had collapsed outside the hearing room and an ambulance had been called to attend to her.

9.The Tribunal noted this deterioration in her health, but said it was not relevant to the application, which depended on past events, and so it handed down its decision.  The decision went into a considerable amount of detail about the history of the proceedings and the events of 26 June.  From paragraph 12 onwards the Tribunal gave its reasons for its decision to strike out the claim on the basis of unreasonable conduct on the part of the applicant.  They said, first, that she had not complied with the order for the exchange of witness statements which was to take place on or before 5 June.  They noted that there was no good reason for the failure to comply with that order and indeed she had confirmed that two of the witness statements were ready for exchange but had not been.  Secondly, the Tribunal said that she had failed to attend the hearing at the time listed.  They then gave an account which I have already summarised of the events of that day.

10.In paragraph 15, the Tribunal said:

"15. In considering this unreasonable conduct the Tribunal specifically took into account various matters in considering the merits of the Respondent's application to strike out the claim.  Namely -- in their favour -- the finding of the Tribunal on 31 March that the Claimant had little reasonable prospect of success and the prejudice to the Respondent if this claim were allowed to proceed and -- against them -- the prejudice to the Claimant in not allowing her claim to proceed as well as the fact that she is unrepresented.  The Tribunal also took into account the fact that the Claimant suggested that the reason for her failure to comply with the Order to exchange witness statements was that she was waiting for documents from the Respondent.  This part of her argument was not clear but in any event the Tribunal notes that no application has been made by the Claimant for an Order requiring disclosure of those documents from the Respondent and accordingly this was of little merit or weight.

1. The Tribunal was also referred to the factors set out at rule 3.9 of the Civil Procedure Rules and those have similarly been taken into account in particular the interests of the administration of justice, proportionality and the lateness of the Claimant's submissions."

11.The Employment Appeal Tribunal heard submissions from counsel on behalf of the applicant, appearing under the Employment Law Appeal Services Appeal & Advice Scheme.  The judgment of Judge Reid sets out the background which I have already summarised and he summarised the case that was put forward by the counsel appearing for the applicant.  Judge Reid concluded, saying:

"17.  Essentially, what I have to determine at this stage is whether there is material before me on which I can say there is a reasonably arguable case for saying that the decision of the Tribunal to carry on as the Claimant wished and not of their own volition to adjourn, was one which was arguably perverse.

18.  It may be that some other tribunals in the circumstances might have taken a different view but I do not see this is a case which is capable of proper argument or that it can properly be suggested that what the Tribunal chose to do is something that a reasonable Tribunal in the circumstances could not or should not have chosen to do.  It may be a harsh result from Mrs Thompson's point of view but it does not seem to me that her Notice of Appeal, as now argued by Mr Sendall, discloses any reasonably arguable point of law and in those circumstances I take the view that this appeal should go no further and should be dismissed at this stage."

12.In refusing permission and a stay, Sir Richard Buxton said:

"The case put to the EAT by counsel representing the applicant related entirely to the refusal to grant an adjournment.  The judge was plainly right in holding that the ET had not gone outside its proper area of discretion and judgment.  It now seems to be suggested that the account given by the ET of the applicant's attitude to continuing with the proceedings was or may have been incorrect, but there is no verification of that claim, which was not made before the EAT.  It is not correct that the ET ignored the directions of Silber J.  A substantial answer was provided to the matter raised by him."

13.Today Mr Ward has relied on a skeleton argument that sets out in detail the grounds why it is submitted that there is a real prospect of this appeal succeeding.  A range of points are taken in that submission as to why the Employment Tribunal was wrong in principle, indeed plainly wrong in exercising its discretion against refusing an adjournment and striking out the claim.  It is pointed out that the effect of what has happened is to deny a hearing of the claim on its merits.  It is said that the Employment Tribunal did not consider properly whether a fair trial was still possible in the time that was left of the slot allocated for the hearing.  It was pointed out, and has been emphasised by Mr Ward in argument, that this was not a case of serial non?compliance with orders of the Tribunal.  It was not even a case, it is said in the skeleton argument, of a deliberate refusal to comply with the orders of the Tribunal.  It is said that the trial could have proceeded and been completed within the time that had been allocated.

14.More specifically, attention was drawn by Mr Ward to the provisions of CPR 3.9 and it was submitted that the Tribunal had not taken proper account of factors which it is required to take into account, and that if it had done so it would have either granted an adjournment or proceeded to hear the matter there and then rather than striking it out.

15.The particular items under 3.9 that Mr Ward highlighted were, first, whether there was a good explanation for the failure to comply with the exchange of witness statements direction and a good explanation for not turning up on time.  There was a failure to consider the extent to which the applicant had complied with other rules, directions and orders in the proceedings.  There had been a failure to comply whether the date which had been fixed could be met.  It was said that it could have been.  There was a failure to consider what effect failure to comply would have on her.

16.Mr Ward quite rightly pointed out that striking out a claim for the defence is the last resort to be used by any court or tribunal because of the severe effects that it has on the person against whom such an order was made.  This was not, he said, an appropriate sanction.  An appropriate sanction which ought to be considered was whether a costs order ought to be made against the applicant in respect of the half day that had been wasted by her not turning up on time.  In summary he said the simplest and proper thing to do would have been for the Employment Tribunal simply to have gone on with the hearing, considered the complaints and made a decision on that.

17.Those arguments have been clearly made and they have assisted me in deciding how I should deal with this matter.  It is of course always a matter of great concern when a court or tribunal has had to resort to the ultimate sanction of saying to a litigant, "you have not complied with the rules for litigation and therefore we are not going to hear your case".  It is particularly severe when the case has reached the actual trial.  These orders are commonly made on the way to a trial when a litigant is not cooperating with the processes which are required for the purposes of justice and fairness to both parties in the course of litigation.

18.In this case, as Judge Reid said in the Employment Appeal Tribunal, another Employment Tribunal may have been more lenient and taken a view which has been pressed by the applicant that the matter could have gone on, but that is not enough in order to win an appeal on a question of law.  It has to be shown that the Employment Tribunal was wrong in law in doing what they did.

19.In my view, and I know that the applicant will be disappointed to hear this, it cannot be said that there is any real prospect of persuading a full court sitting three appeal judges that the Employment Tribunal erred in law in taking the steps it did.  It was a course that was open to it.  It was a hard thing to do, but it was not legally wrong.  It was within the bounds of discretion to say that, in view of the history of the proceedings it was not just a matter of turning up late on the day.  There had not been compliance with the exchange of witness statements, there had been a previous hearing at which various parts of the claim had been struck out and a requirement made for a payment on the basis that the case did not seem to have a reasonable prospect of success.

20.Looking at the whole history of this matter, I do not think it can be said that this Tribunal erred in law.  It looked at 3.9 in the CPR.  It did not spell out all the factors but I do not think it can be assumed against it that it ignored the factors that it did not mention.  It is a carefully reasoned decision and is in my view sufficient to support the exercise of the extreme powers that the Tribunal has in these circumstances.

21.I conclude that this application for permission to appeal ought to be refused.  The proposed appeal does not have a real prospect of succeeding and, if it went on, I think it would go against the applicant and would result in all likelihood in an adverse order for costs against her which would make things even worse than they already are so far as she is concerned.  So for those reasons the application is refused.

Order: Application refused