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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pallet Route Solutions Ltd v Morris (Practice and Procedure : Appearance or Response) [2013] UKEAT 0411_12_1010 (10 October 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/0411_12_1010.html Cite as: [2013] UKEAT 0411_12_1010, [2014] ICR 394, [2013] UKEAT 411_12_1010 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JAMES POTTS (Representative) Peninsula Business Solutions Ltd The Peninsula 2 Cheetham Hill Road Manchester M4 4FB |
For the Respondent | MS KERRY GARDINER (of Counsel) Instructed by: DWF LLP Solicitors 1 Scott Place 2 Hardman Street Manchester M3 3AA |
SUMMARY
PRACTICE AND PROCEDURE
Appearance/response
Right to be heard
A Respondent submitted a response late (it was sent in what should have been good time, but was sent 2nd class and under stamped). A default judgment followed, but as to liability only. The Respondent was notified of the remedy hearing and told that it could take part. However when the day before the date of the hearing the Respondent's representative received a statement of the evidence the Claimant proposed to adduce at the hearing, and telephoned the Employment Tribunal, he was told that he could not take part since he was debarred from doing so in consequence of the response being late.
Held that where the rule spoke of not being "entitled to take any part in the proceedings" this did not mean that the Respondent could not do so if invited, and did not preclude the Respondent asking to be permitted to do so. In the circumstances of this case, he would almost certainly have been permitted or invited to participate, even if he could not insist on it as of right, and accordingly a material procedural irregularity had occurred such that the appeal would be allowed.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
"The respondent may apply […] 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 employment judge shall only extend the time within which a response may be presented if he is satisfied that it is just and equitable to do so."
"Subject to paragraphs (2)(a) and (6) [neither of which applies here], those circumstances are when either—
(a) no response in those proceedings has been presented to the Employment Tribunal Office within the relevant time limit […]."
"A default judgment may determine liability only, or it may determine liability and remedy. If a default judgment determines remedy, it shall be such remedy as it appears to the employment judge that the claimant is entitled to on the basis of the information before him."
"A respondent who has not presented a response to a claim […] shall not be entitled to take any part in the proceedings except to […]."
And it listed a number of applications that might be made, which included an application under rule 33 for the review of default Judgments and an application under rule 35, which is a preliminary consideration of an application for review in respect of rule 34(a), (b) or (e).
"(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 an employment judge 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 [where that has not been received by the Employment Tribunal Office] 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. […]
(4) The employment judge may—
(a) refuse the application for a review;
(b) vary the default judgment;
(c) revoke all or part of the default judgment;
(d) confirm the default judgment […].
(5) A default judgment must be revoked if the whole of the claim was satisfied before the judgment was issued […]. An employment judge may revoke or vary all or part of a default judgment if the respondent has a reasonable prospect of successfully responding to the claim or part of it.
(6) In considering the application for a review of a default judgment the employment judge must have regard to whether there was good reason for the response not having been presented within the applicable time limit. […]"
"55. […] We think that there was, although we readily concede that the route is tortuous and highly artificial, at least in circumstances where the default judgment on liability stands.
56. The route is this. As we have indicated, the only way in which a challenge can be mounted to a refusal not to accept a response where no default judgment is entered is through a review under Rule 34. So far as remedy was involved, there was no default judgment with respect to that and therefore nothing to set aside pursuant to Rule 33. So, a Rule 34 review was the only route. That presupposes that a response has been refused. It is true that no formal response had even been drafted or submitted, but we think that, in rejecting the review of the default judgment, the chairman must be taken to have also rejected an application to permit the late submission of a response. After all, the essence of a review of a default judgment is that the Tribunal is being asked to accept a response out of time. Had the response been accepted, then the default judgment would have been set aside. That refusal to allow a response could then itself be the subject of a review under Rule 34. Normally, that would require an application in writing, but there is an exception where it is made orally at the hearing where the decision that it is sought to review was made, Rule 35(2). That was the position here, at least if the representations by the Respondent's representative could realistically be seen as an application for a review.
57. We think that they could. […]"
"If there were no way of enabling participation in these circumstances, then we think there would be a real question, as [the advocate for the Claimant] submitted, whether Rule 9 might be incompatible with Article 6 of the European Convention on Human Rights, but we need not explore that issue further, having concluded that there is a lawful, if artificial, route."
"You may submit written representations for consideration at the hearing. If so, they must be sent to the Tribunal and to all other parties not less than seven days before the hearing. You will have the chance to put forward oral arguments in any case. It is your responsibility to make sure that your witnesses come to the hearing."
It therefore said (despite the terms of rule 9) that the Respondent would be heard.
"[…] unless and until an extension of time is granted shall only be entitled to participate in any hearing to the extent permitted by the Judge."