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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Impactdisk Ltd v. Lucek [2006] UKEAT 0357_06_2012 (20 December 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0357_06_2012.html Cite as: [2006] UKEAT 357_6_2012, [2006] UKEAT 0357_06_2012 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | Mr E McFARLANE (Representative) Natwest Mentor Services Litigation Dept 2nd Floor Sapphire West 550 Streetbrook Road West Midlands B91 1QY |
For the Respondent | MR S KEEN (of Counsel) Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ |
SUMMARY
Practice and Procedure – Review
A request for a review was made out of time following a default judgment. The Chairman rejected it on time grounds alone without appearing to take into account the reasons put forward for delay, or the merits of the case, both of which should be considered when deciding if time should be extended for such an application. Further, the Chair expressly took into account a consideration which appeared irrelevant. Thus the matter remitted for a fresh decision to be taken.
THE HONOURABLE MR JUSTICE LANGSTAFF
"1. A party may apply to have a default judgment against or in favour of him reviewed. An application must be made in writing and presented to the Employment Tribunal office within 14 days of the date on which the default judgment was sent to the parties. The 14 day time limit may be extended by a Chairman if he considers that it is just and equitable to do so.
2. The application must state the reasons why the default judgment should be varied or revoked. When it is the Respondent applying to have the default judgment reviewed the application must include with it the Respondent's proposed response to the claim, an application for an extension of the time limit for presenting the response, and an explanation of why Rules 4(1) and (4) were not complied with."
Rule 33(4) provides that the Chairman may:
"(a) refuse the application for a review;
(b) vary the default judgment;
(c) revoke all or part of the default judgment; or
(d) confirm the default judgment".
Rule 33(6) provides:
"In considering the application for a review of a default judgment, the Chairman must have regard to whether there was good reason for the response not having been presented within the applicable time limit."
"If the Respondent wishes to respond to the claim made against him he must present his response to the Employment Tribunal office within 28 days of the date on which he was sent a copy of the claim. The response must include all the relevant required information. The time limit for the Respondent to present his response may be extended in accordance with paragraph 4."
Paragraph 4 reads:
"The Respondent may apply under Rule 11 for an extension of the time limit within which he is to present his response. The application must be presented to the Employment Tribunal office within 28 days of the date on which the Respondent was sent a copy of the claim, unless the application is made under Rule 33(1), and must explain why the Respondent cannot comply with the time limit. Subject to Rule 33 the Chairman should only extend the time within which a response may be presented if he is satisfied that it is just and equitable to do so."
The facts
"The application to review the Default Judgment of 3 February 2006, received on 9 April 2006, is well outside the time limit. It is not appropriate to extend that time because (a) the Respondent was advised by letter of 21 February 2006 of the possibility of a review and invited to seek advice about this, and (b) did not attend the remedy hearing, of which the Respondent was aware."
"The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The Tribunal is entitled to take into account the nature of the explanation and to form a view about it. The Tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the Tribunal to decide what weight to give to this factor in the exercise of the discretion. In general ,the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full as well as honest.
In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other, and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising a discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer if the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party then that is a factor in favour of granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying to them a rule of law not tempered by discretion.
It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham M.R. in Costellow v Somerset County Council [1993] 1 W.L.R. 256, 263:
"a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate."
Thus if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. If no extension of time is granted for entering a notice of appearance, the industrial tribunal will only hear one side of the case. It will decide it without hearing the other side. The result may be that an applicant wins a case and obtains remedies to which he would not be entitled if the other side had been heard. The respondent may be held liable for a wrong which he has not committed. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case."
"Mr Colin Jackson, Director of Impactdisk Ltd, dismissed me on the spot without notice and without following any form of disciplinary procedure."
"1. Where a complaint is presented to an Employment Tribunal under a jurisdiction listed in schedule 3 or 4 [I interpose to say there is no point of relevance which emerges here in respect of those schedules] and (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified at paragraph (2) apply, or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified at paragraph 3 apply, the normal time limit for presenting the complaint is extended for a period of three months, beginning with the day after the day on which it would otherwise have expired."
"The circumstances referred to in paragraph 1(a) are that the employee presents a complaint to the Tribunal after the expiry of the normal time limit for presenting the complaint. But I have reasonable grounds for believing when that time limit expired that a dismissal or disciplinary procedure, whether statutory or otherwise, including an appropriate procedure for the purposes of regulation 5(2), was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint."
"Had you fulfilled your legal obligations and responsibilities as an employer it seems unlikely that a simple discussion about when pay was due would have resulted in my unfair dismissal."
And at the bottom of that paragraph:
"Finally a disciplinary procedure would have allowed you a chance to come to a rational decision rather than acting impulsively in the heat of the moment."
"However, if for some reason as alleged you did not receive the claim you may wish to seek advice. In certain circumstances a review of the Default Judgment may be possible but this is a matter for you to decide; the Employment Tribunal cannot offer advice."
Mr Keen draws attention to the fact that the Appellant says in part that he was advised in certain respects.
"You have the right to apply for a review of the Default Judgment. If you wish to do so you must apply within 14 days of the date of this letter. Your review application must include a statement of the reasons why the Default Judgment should be varied or revoked, an application for an extension of the time limit for presenting a response, and explanation of why the response was not presented within the original time limit, and why no application for an extension of that time limit was made. The response which you now wish to present must be attached to the letter."