![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chukwudebelu v Chubb Security Personnel Ltd. [2008] EWCA Civ 327 (04 March 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/327.html Cite as: [2008] EWCA Civ 327 |
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE REID QC)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE KEENE
and
LORD JUSTICE MAURICE KAY
____________________
CHUKWUDEBELU |
Appellant |
|
- and - |
||
CHUBB SECURITY PERSONNEL LTD |
Respondent t |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
____________________
Crown Copyright ©
Lord Justice Maurice Kay:
(1) This appeal limited to grounds 4 and 11 be set down for a full hearing.
(2) The full hearing of this appeal be heard before a Judge and two Members.
(3) Within 14 days of the seal date of this order the Appellant lodge with the Employment Appeal Tribunal and serve on the Respondent further information of the Notice of Appeal in relation to the sums claimed identifying the documents before the Employment Tribunal and relied on for each of the monetary claims and showing as appropriate the periods when the Appellant worked, refused to work or was available to work but did not, and in default of such lodgement and service the appeal be dismissed."
"The listing of this matter is to be on the 13th day of April 2007 together with the full hearing of Grounds 4 and 11 and the Amended Notice of Appeal. Revised time estimate 1 day."
In other words, HHJ Birtles was making arrangements for there to be a single hearing on 13 April in the form of a final inter partes hearing in relation to Grounds 4 and 11 but a preliminary hearing in relation to the other nine grounds, which related to the issues of unfair dismissal, race discrimination and victimisation.
"So far as I am concerned the position is that the decision of the Registrar was correct, the appeal against her decision is dismissed and it follows that since HHJ McMullen's order stands the time limit in it has not been complied with and the appeal itself also stands dismissed".
"The consequence that by virtue of the order of HHJ McMullen QC sealed and dated the 12th day of January 2007 the substantive appeal itself stands dismissed".
"Our client's Advocate, Mr Sykes, advises us that his recollection is that the judge indicated that he would make directions regarding filing further information of the loss of wages claim and an amended appeal notice. It is not his recollection that the Judge indicated when this was to be done at the hearing since the time would be stated in the Order. In any event, the fact is that the ruling and directions made by the Judge were made into an Order, which unfortunately we did not receive. Our client would have had no problems complying with the same had he received it."
"That being so, it is his duty to comply with the overriding objective of any litigation, to progress the case as swiftly as possible. The Appellant would also have been aware that as a notice of hearing had been sent out two days after the case, that time was of the essence.
It is not appropriate to claim that preparation could wait until after receipt of an order. Time runs from the sealed date of the order and if the appellant had regarded this as vital he should have made earlier enquiries. In fact, a letter from the court dated the 6th day of February 2007 prompted the appellant's enquiries and even then, the amended appeal was not to hand but the appellant took a further 7 days.
The Appellant was given generous permission by the judge as it is the practice of this court to insist on all applications to amend an appeal being accompanied by the proposed amendment but he still failed to comply with the time scales."
"He says that in fact the order, as it was drafted. was in more detailed terms than had emerged, as far as he was concerned, from the discussion before the Tribunal but that he communicated the substance of the order to those instructing him, albeit he was not aware as to what is described as the "unless element" of the order, i.e. that failure to comply with the order would result in the appeal being dismissed. He further says that I should accept that the sealed order had not been received by those instructing him because there is a letter [ie the letter of 14 March] from his instructing solicitors saying as much."
HHJ Reid was unimpressed by all of that. At paragraph 7 of his judgment he said:
"So far as all that is concerned, I have no proper evidence from the Appellant's solicitors that they did not receive in the firm. It would be remarkable if the order was sent to one side but not to the other side. I am entirely happy to accept that the solicitor personally never became aware of the order but it does not follow from that (and I can not in the absence of any evidence assume) that it was never received at the firm at all. In any event, whether or not he was aware of the precise terms of the order, he was aware of the requirement to put in the further and better Particulars, if I may call them that, and to take up, if so desired, the permission to amend within 14 days. Whether or not he knew of the 'unless' aspect of the order seems to me to be immaterial. He was well aware that a hearing date had been fixed."
In a later part of the judgment the judge considered the matter further and said:
"Were this appeal to be allowed then it would be necessary to make a consequential direction for a Respondent's notice answer and for the Respondent's skeleton argument. It would therefore be impractical to ask the Respondents to conduct the matter today. The matter would have to go off for somewhere in the region of 3 months until when a new hearing could be arranged but in the meantime the matter would still be in limbo.
12. It has to be remembered that the dismissal of the claimant took place back in 2004. It may be that the Appellant has some remedy against his legal advisers, that is not a matter for this Tribunal: So far as I am concerned the position is that the decision of the Registrar was correct, the appeal against her decision is dismissed and it follows that since HHJ McMullen's order stands the time limit in it has not been complied with and the appeal itself also stands dismissed."
"together with the full hearing of Grounds 4 and 11… Revised time estimate 1 day."
Lord Justice Keene:
Lord Justice Pill:
"The position it seems to me of the hearing was that Mr Sykes, an employment law consultant instructed as an advocate by the Appellant's solicitors, had appeared before Judge McMullen QC and the Tribunal. He was therefore aware of the terms of the order that was made. He says that in fact the order, as it was drafted, was in more detailed terms than had emerged, as far as he was concerned, from the discussion before the Tribunal but that he communicated the substance of the order to those instructing him, albeit he was not aware of what is described as the "unless element of the order", i.e. that failure to comply with the order would result in the appeal being dismissed."
That potentially was a most important matter because, if an unless order is made, it is important that the effect of it is brought home to those appearing for the party against whom it is made.
"In any event, whether or not he [that is Mr Sykes] was aware of the precise terms of the order he was aware of the requirement to put in the further and better particulars, if I may call them that, and to take up, if so desired, the permission to amend within 14 days. Whether or not he knew of the unless order aspect of the order seems to me to be immaterial. He was well aware that a hearing date had been fixed."
"The learned Judge erred in ruling that lack of knowledge of the "unless" aspect of the Order was immaterial since this would cause significant prejudice to the Appellant if, as in the circumstances of this case non-receipt of the Order resulted in failure to comply with it."
However, there is no statement from Mr Sykes as to the circumstances in which HHJ McMullen's order was drawn up or as to the parts of it which were orally drawn to his attention, either in the course of the hearing or shortly afterwards.
"this matter be expedited and the papers be placed for a Rule 3(10) hearing before a different judge."
I comment in passing that supports the construction of the detailed order which Maurice Kay LJ has put upon it. Clearly there was to be a further hearing on the other grounds and that took place before HHJ Birtles on 7 March 2007, Mr Sykes again appearing on behalf of the appellant and the respondents not being represented. That order too was in considerable detail spelling out procedures to be followed. At paragraph 4, it stated:
"The listing of this matter is to be on the 13th day of April 2007 together with the full hearing of Grounds 4 and 11 of the Amended Notice of Appeal. Revised time estimate 1 day".
"This is an appeal from an order of the Registrar made on 23 March".
"The third consequence is that before making conditional orders, particularly orders for the striking out of statements of case for the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate to all the circumstances of the case. Of course it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of claim or dismissing the claim or counterclaim is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified. I find it difficult to imagine circumstances in which such an order could properly be made for what were described in Keen Phillips v Field as 'good housekeeping purposes'".
Order: Appeal allowed in part.