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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kyamanywa v London Borough of Hackney [2003] EWCA Civ 902 (05 June 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/902.html Cite as: [2003] EWCA Civ 902 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Strand London, WC2 |
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B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE MUMMERY
LORD JUSTICE CARNWATH
____________________
MS BEATA KYAMANYWA | Applicant/Appellant | |
-v- | ||
LONDON BOROUGH OF HACKNEY | Respondent/Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS C MACLAREN (instructed by London Borough of Hackney E8 1EA) appeared on behalf of the Respondent
____________________
Crown Copyright ©
"Nothing has been heard of the possible application to amend the Applicant's Originating Application to include a breach of contract claim. The application might be allowed or might not. One cannot know until the Application with the proposed amendment in writing is produced. The Applicant says she has not been able to pay her solicitor who requires a payment in advance to draft such an amendment."
The chairman continued in paragraph 15:
"However, it must be noted that this case started on 25 September 1998 and by the date it will be heard, it will be some 19 months old. The time must come when the case is heard and a decision made and that time should come as soon as possible."
"I should be grateful if my case would be listed for hearing in order to bring this matter to an end as soon as possible.
I want to put on record that I am unable to continue this way."
A list of names at the bottom of her typed letter shows that copies were sent to Balogun Kirvan, the solicitors, as well as to the Director of Legal Services and Chief Executive of Hackney.
"I refer to the Applicant's letter of 2 June 2000. The Chairman has directed that this case will be listed for a full hearing for 3 days."
The notice of hearing was sent on 17 August 2000. It notified Hackney Legal Services and Balogun Kirvan, but not the appellant personally, that the application would be heard by an Employment Tribunal at Stratford on Wednesday 6 September 2000 to Friday 8 September 2000.
"Ms Kyamanywa did not appear on the hearing and the Tribunal clerk therefore rang her solicitors Messrs Balogun Kirvan. The clerk was told that the solicitors had no instructions from Ms Kyamanywa and no longer represented her. A subsequent attempt by the same clerk to contact Ms Kyamanywa on the telephone was unsuccessful.
6. In the circumstances Mr Heath representing the Respondents asked for the Application to be dismissed.
7. We have considered the Originating Application and the Notice of Appearance. We have also read the two previous decisions and noted that these proceedings were started as long ago as 25 September 1998. We do not know why Ms Kyamanywa is not present nor indeed whether she personally was aware of the hearing dates. However, her solicitors then on record would appear to have been aware that the case was due to start today. In the absence of any application for an adjournment we dismiss the Originating Application pursuant to Rule 9(3) of the Employment Tribunals Rules of Procedure 1993 as we do not think that Ms Kyamanywa can succeed where we have no evidence from her."
"If a party fails to attend or to be represented at the time and place listed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."
"(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at --
. . . . . . . . . .
(c) in the case of notice or document directed to a party --
(i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (4), or
(ii) if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body's registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow;
.... .... ....
And a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.
(4) A party made at any time by notice to the Secretary and to the other party or parties (and, where appropriate, to the appropriate conciliation officer) change the address to which notices and documents are to be sent."
Among the notices and documents which are to be sent are documents which give notice of the time and place fixed for the hearing. Those are given under the provisions in regulation 5.
"I am the applicant in the above matter and I write to inform the Employment Tribunal that I have today withdrawn instructions from Messrs Balogun Kirvan solicitors (see attached copy letter). I have instructed the Hackney African Organisation to represent me. Dr AA Seray-Wurie is the Officer of the said Hackney African Organisation who is dealing with the matter.
I would be grateful if all further communications regarding my case are directed to him at the following address."
Attached was a copy of a letter of the same date, written by the applicant to Mr John Hatrick of Balogun Kirvan, saying that she has been unemployed for a very long time and has no income and therefore can no longer afford to continue to pay his fees, "and consequently it is with regret that I have to withdraw my instructions from your firm with immediate effect". She gave him the details of her new representative and asked him to send her file without delay.
"(1) Subject to the provisions of this rule, a tribunal shall have power on the application of a party or of its own motion to review any decision on the grounds that -
(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party".
(d) relates to new evidence, which is not a ground relied on in this case.
"(e) the interests of justice require such a review."
"We thank you for your letter dated 13th June 2000. Unfortunately we have not been instructed lately by Mrs Kyamanywa, and accordingly, we would be grateful if you could forward a copy of all correspondence to Mrs Kyamanywa directly at the address below [and there is then given her E5 Mt Pleasant Lane address]."
No evidence from Mr Hatrick was given to the tribunal conducting the review to establish that such a letter was sent.
"2. The Applicant had no prior knowledge nor had she received Notice of the hearing of the 6th September 2000 leading to the Tribunal's Decision of the same date."
That is clearly ground 1(b).
"3. The Decision of the 6th September 2000 was made in the Absence of the Applicant. She was neither present nor was she Represented at the said hearing."
That ground is based on 11(1)(c). I omit paragraph 4, as I do not think any separate point is made on that, but paragraph 5 says:
"Under all the circumstances of the case, it would be very unfair and unjust for the Tribunal's Decision made on the 6th September 2000 dismissing the Applicant's Originating Application to stand. The Tribunal is therefore asked to review the said decision in order to change or revoke it."
Although that does not follow precisely the wording of 11(1)(e), I read that as referring to the interests of justice requiring a review.
"Both parties accept that a notice of hearing sent to solicitors on the record amounts to a notification to the solicitors' client, even though that client is not so informed. The Tribunal file shows that such a notice properly addressed was sent to Balogun Kirvan and the Respondents. The Respondents, through their counsel Mr Heath, indicated that they had duly received the notice. The notice must be deemed to be properly served when sent by post unless we are satisfied by evidence that it was not in fact received. All we really have today is the letter from Balogun Kirvan dated 18 September 2000. We do not have any evidence from Mr Hatrick who wrote that letter and we are therefore not satisfied on the information before us that the notice of hearing was not in fact received. We also find it odd that a copy of the earlier letter allegedly sent to the Tribunal offices [that is a reference to the letter of 14 June] was not provided by Mr Hatrick and we are not satisfied that such a letter was ever sent. As already stated, there is no sign of such a letter in the Tribunal file. If, however, such a letter was sent, in our view Balogun Kirvan should have informed their client prior to coming off record that they intended to take such a step. They certainly should have informed their client that such a letter had been written to the Tribunal offices and they should have sent her a copy of it. We leave on one side the question of whether the solicitors were entitled to determine their retainer in such a way. We also note that Ms Kyamanywa did not disinstruct them until after the hearing on 6 September 2000."
That last reference is to the letter of 15 September, sent by the appellant to Balogun Kirvan.
"Accordingly, as the second ground of application in effect depends on the first, namely the reason for non-attendance was the non-notification, the application for a review fails."
No more is said about that ground.
"Historically many litigants have suffered because of the faults of their representatives and Courts and Tribunals have left them make such claims on those representatives as they think fit. To allow a party to proceedings to put the other party to a second hearing because that party's representative has let him or her down would be unfair to the other party. As a general proposition both sides' interests must be taken into account when dealing with human rights. In Lindsay v Ironsides Ray & Vials [1994] ICR 384 the Employment Appeal Tribunal stated that failings of a party's representatives would not generally constitute a ground for review -- and that to allow such arguments would be to follow a dangerous path. We respectfully agree."
" . . . the second ground of application depends on the first, namely the reason for the non-attendance was the non-notification from which they concluded that the application for a review failed."
I think that that is too narrow a reading of the ground of review based on absence of a party, that is 11(1)(c). It is quite possible for a ground of review to fail on 11(1)(b) but still to succeed on 11(1)(c). It is not difficult to think of circumstances in which a party may have received, or be deemed to have received, notice of proceedings, but be absent when the decision is made for a very good reason: some emergency or change of circumstances which had arisen making it impossible or excessively difficult for the applicant to be present at the hearing.
ORDER: Appeal allowed. Case remitted to a freshly constituted Employment Tribunal for rehearing. No order as to costs, save detailed assessment of the appellant's costs.
(Order not part of approved judgment)