IN THE EMPLOYMENT AND DISCRIMINATION
TRIBUNAL
IN THE MATTER:
BETWEEN
|
STUART
SMILLIE
|
CLAIMANT
|
|
AND
|
|
|
STATE STREET
(JERSEY) LIMITED
|
RESPONDENT
|
INTERIM JUDGMENT
Reference: [2019]
TRE 177
Hearing Date: Wednesday
20 November 2019
Before: Mrs
H Westmacott, Deputy Chairman
Appearance:
For the Claimant: Mr
D Flynn, Voisin Law
For the Respondent: Mr
H Thomas, Carey Olsen
JUDGMENT
The Respondent’s application
for a review of the Chairman’s decision to proceed to a hearing in
accordance with Article 12 of the Employment and Discrimination Tribunal (Procedure) Order 2016
(“Procedure Order”)
(“Article 12 Hearing”) and for an extension of time to issue a response is granted.
ORDER
1. The Respondent shall file its response form
with the Tribunal by 4pm on 13 December 2019.
2. The Article 12 proceedings are stayed until
the Tribunal accepts any response filed by the Respondent, upon which the
Article 12 proceeding will be discontinued and the claim will proceed in
accordance with the provisions of the Procedure Order that apply once a
response has been accepted.
3. If no response is filed by 4pm on 13 December
2019 or the Tribunal does not accept any response that is filed, the Article 12
proceedings will continue and a Case Management Hearing to prepare for the
Article 12 Hearing will be listed.
REASONS
Background
1. By way of claim form sent to the Tribunal on Thursday
29 August 2019 the Claimant brought a claim against the Respondent for
constructive unfair dismissal on the grounds that the Respondent’s
actions amounted to repudiatory breaches of the term of mutual trust and
confidence implied into the employment contract between the parties, entitling
the Claimant to resign without giving notice. The Claimant alleges that the following
actions by the Respondent constitute such breaches:
(a) after the Respondent announced it was being
purchased in December 2018, the Claimant was given no clarity as to what his
role under the new ownership would be, despite seeking clarification from the
Respondent in January, February and April 2019. When he did receive a response
to his request for clarity, after 18 April 2019, he was given mixed messages
from different individuals within the Respondent;
(b) the Claimant issued a formal grievance with
the Respondent on 29 April 2019, which was not upheld upon appeal. The entire grievance
process took 16 weeks to complete which the Claimant alleges was an
unacceptable length of time. The Claimant also alleges that the outcome of the
grievance procedure was perverse; and
(c) the Respondent sought to distance itself from
responsibility in relation to the Claimant’s employment and rely on the
new owner to resolve the position.
2. The Claimant alleges that he resigned as a
result of these breaches on 22 August 2019.
3. The claim form stated the Respondent’s
details were as follows:
Name of employer: State Street (Jersey)
Limited
Address: Lime
Grove House
Green Street, St Helier
Postcode: JE1
2ST
4. The claim was registered and placed on the
Tribunal’s list on Friday 30 August 2019 and on Monday 2 September 2019
the Tribunal Registrar sent a copy of the claim form by post to the address
specified on the claim form. The name of the employer was included and it was also
marked for the attention of the HR Department.
5. As set out in the Tribunal’s letter of
2 September 2019, in accordance with Article 8 of the Procedure Order, the Respondent had until 23
September 2019 to file its response to the claim.
6. No response to the claim having been received
by 23 September 2019, the Chairman decided it was not possible to make a
determination on the claim based on the information in the claim form alone and
that an Article 12 Hearing should be held and notice of that hearing should be
sent to the parties.
7. As the Respondent had failed to respond to
the claim form, the Tribunal Registrar telephoned the Respondent to check that
the postal and email addresses specified for the Respondent on the claim form
were correct. The person who answered the telephone confirmed that they were
and the Tribunal took the decision to send its next correspondence by email. Accordingly,
an email was sent to both the Claimant and Mr P Mundy on behalf of
the Respondent on 26 September 2019.
8. That email stated as follows:
“The
Tribunal has received no response to the Claimant’s claim which it sent
to the Respondent on 2 September 2019 … the Respondent is therefore no
longer entitled to participate in proceedings without permission of the
Chairman/Deputy Chairman.
Article 12
Under the
provisions of Article 12 of the Procedure Order, the Chairman is required to
decide whether or not a determination can be made based on the information
provided in the Claim Form. In this case, the Chairman is not able to make a
determination and this matter will therefore proceed to a hearing.
…
Review
The
Respondent may apply for a review of this decision with written reasons within
7 days, that is by midnight on Thursday 3rd October
2019. The circumstances in which the Respondent may apply for a review are as
follows:
- That
the decision was wrongly made as a result of an administrative error;
- That
a party did not receive notice of the proceedings leading to the decision;
- That
the interests of justice require a review.”
9. By email sent at 21:12 on 3 October 2019 the
Respondent’s representative made an application to the Tribunal for a
review of this decision and for leave to file a response to the claim. The
Claimant objected to this application and, by email on 21 October 2019, the
Chairman directed that the application could not be determined on the papers
and a hearing was listed for 20 November 2019 (“Interim Hearing”).
Documents
10. The parties have provided the following
documents in advance of the Interim Hearing:
(a) skeleton arguments on behalf of both parties
together with the authorities they refer to;
(b) witness statements on behalf of the
Respondent from Ms S Perry (“SP”)
who is an in house employment lawyer for State Street based in its London
office and Mr P Mundy (“PM”) who at all material times was the head of alternative
investment solutions for the Respondent in the Channel Islands;
(c) a witness statement from the Claimant
(“SS”) who worked for
the Respondent from 1 April 2010 until 22 August 2019, most recently as an
operational risk analyst; and
(d) a
bundle of documents that the parties consider to be relevant to the issues to
be determined at the Interim Hearing (“Bundle”).
11. References
in square brackets below are, unless the context suggests otherwise, to the
page of the Bundle. Those followed with a § refer to a paragraph on that
page and references that follow a witness’ initials refer to the
paragraph number of that witness statement.
12.
Both the Claimant and
SP attended the Interim Hearing and gave oral evidence. However, PM did not attend. As
the Claimant was unable to cross-examine PM I was unable to place significant
weight on his statement.
13. When
making my judgment I considered all of the evidence and submissions provided by
each of the parties. In this
judgment only the facts and submissions that are relevant to the issues to be
determined at the Interim Hearing have been summarised.
Relevant Facts
Receipt of the Claim Form
14. It is not in dispute that the
Respondent’s address is Lime Grove House, Green Street, St Helier, Jersey,
nor that the claim form was sent to this address on 2 September 2019.
15. Mr Flynn asked SP whether she had any reason to believe that the claim
form would not have been delivered to the Respondent’s address in Jersey
on or around 3 or 4 September 2019, in accordance with the period in which
postal delivery usually takes place. SP confirmed that she did not. In
addition, the Respondent did not put forward any evidence to suggest that there
was any delay in the delivery of the claim form to that address.
16. The Respondent asserts that the claim form
was received and opened at its Edinburgh office on 3 October 2019. While SP
states this in her witness statement [SP2.4], it is understood that her
knowledge of this is based on what she was told by her colleagues in Dublin. A
copy of an email sent to SP on 3 October 2019 has been provided which does not
refer to when the letter was opened but does mention that it was only received
in Edinburgh that day [pg26§1]. The name of the sender of that email is redacted but SP confirmed it
was a member of the Respondent’s HR team.
17. No evidence has been put forward to explain
what happened to the claim form between 2 September and 3 October 2019.
Although it is noted that the email of 3 October 2019 states that “it must have got lost along the
way” [pg26§1]. SP said she must have had a discussion with her colleague on the
telephone about this but that she did not get to the bottom of the matter.
18. SP said she was not aware of any policy in
relation to how post that arrives at the Respondent’s address in Jersey
is dealt with. When asked by Mr Flynn why the
Respondent has not put forward a witness who could explain how letters are
dealt with when they arrive at the Respondent’s address in Jersey, SP
said that she did not know.
19. SP said that the HR set up within the
Respondent is complicated with different HR functions being performed from
different offices; while the payroll function is performed from Edinburgh the
employee relations function is performed from Dublin. She was, therefore, not
surprised that a letter addressed to the HR department of the Respondent, which
was received in Jersey, ended up being sent on to its Edinburgh office. Equally
she would not have been surprised if it had ended up in Dublin.
20. In addition, SP maintained that it was not unusual
that the letter was not opened until it reached one of the HR teams; as HR
information is often personal or sensitive, people outside of those teams may
be reluctant to open it.
Knowledge of the Respondent
21. It is not disputed that a number of
individuals at the Respondent were advised that the Claimant intended to bring
a claim against the Respondent.
22. The Claimant contends in his witness
statement that following a meeting he had with PM on 18 September 2019 he was
left in no doubt that PM was aware he “had made a claim for unfair dismissal” [SS9]. However, when I sought an explanation during
the Interim Hearing as to why the Claimant thought this, he clarified that
although it was clear to him that PM knew of his intention to bring a claim the
Claimant did not know whether or not PM knew that a claim form had actually been
submitted.
23. The Claimant confirmed that at no stage did
he say to anyone from the Respondent that he had actually filed his claim nor
did he personally provide them with a copy of the claim form.
Submissions
24. There was some confusion in both parties’
submissions regarding what application was being heard at the Interim Hearing. While the Respondent was seeking to set
aside a judgment made in accordance with Article 12 of the Procedure Order
(“Article 12 Judgment”)
and requesting an extension of time in which to file its response, the Claimant
was responding to an application to set aside the secretary of the
tribunal’s decision in accordance with Article 9 of the Procedure Order
to reject a response filed outside of the deadline. In fact, no Article 12
Judgment had been issued, nor had any response been filed which could be
rejected.
25. At the outset of the Interim Hearing I
referred the parties’ representatives to the text of the email from the Tribunal
dated 26 September 2019 (set out at paragraph 8 of this judgment)
and to Article 12(2) of the Procedure Order and proposed that the appropriate
application was for a review of the decision of the Chairman to proceed to an
Article 12 Hearing and for an extension of time in which to file a response. Both
parties were happy to proceed on this basis.
26. The Respondent’s written submissions
identified the following two issues to be determined in relation to this
application:
(a) Was the claim form properly served on the
Respondent?
(b) If it was correctly served, it is otherwise
just and equitable to grant the application?
Was the Claim Form Properly Served?
27. The Respondent’s submissions refer to Article
43 of the Procedure Order which, in so far as it is relevant, states:
“43 Delivery to parties
(1) Documents may be
delivered to a party (whether by the Tribunal or by another party)
(a) by post;
(b) by
direct delivery to that party’s address (including delivery by a courier
or messenger service);
(c) by
electronic communication; or
(d) by
being handed personally to…
(2) For the
purposes of paragraph (1)(a) to (c), the document must be delivered to the
address given in the claim form …”
28. The Respondent submits that Article 43 was
not complied with because the Claim Form was not delivered to the address
specified within it. The Respondent makes this contention on the basis that the
Tribunal Service added the line “The HR Department” to the address.
29. The Respondent’s submissions go on to
refer to Article 45 of the Procedure Order which states that:
“45 Irregular
Service
The Tribunal may treat any document as delivered to a person, despite
any non-compliance with Article 43, if it is satisfied that the document in
question, or its substance, has in fact come to the attention of that
person.”
30. The Respondent contends that there is no
evidence to show that the claim form came to its attention.
31. The Respondent’s submissions refer to
the obligations of the Tribunal Service under the Data Protection (Jersey) Law
2018, stating that if the Tribunal Service had taken steps to ensure that the
Respondent intended to keep personal data securely the claim form would have
come to the attention of the Respondent in time.
32. In oral submissions the Respondent’s
representative noted that while post is a possible method of service, the
Tribunal had other options open to it in respect of service and there was a
duty on the Tribunal as a data controller to ensure that it complied with all
applicable data protection laws when selecting which option to use for service.
33. The Claimant submits that the addition of “the
HR Department” above the Respondent’s address did not prevent the
claim form from being properly served. It was not unreasonable for the Tribunal
to add this to the address. It did not prevent the letter from being delivered
to the Respondent and, once it had been, it was up to the Respondent to decide
what to do with it. The fact that it was not drawn to the attention of the
relevant people within the Respondent was its own fault.
34. The Claimant submitted that even after PM
became aware of the claim form on 26 September 2019 he did nothing about it and
this was indicative of the Respondent’s attitude to the claim. The Claimant went on to submit that the
fact that the Respondent has not called a witness who is able to deal with what
happened to the claim form between 2 September and 3 October 2019 demonstrates
its cavalier approach.
Is it Just and Equitable to Set Aside the Article 12 Judgment?
35. The Respondent asserts that the
Tribunal’s power to set aside an Article 12 judgment was confirmed by the
Royal Court in Ladbrokes, Crabtree and Griffith
v Lawrie [2019] JCR 154 (“Ladbrokes v
Lawrie”).
36. The Respondent goes on to submit that the
tribunal should, when deciding whether to set aside an Article 12 judgment have
regard to the UK case of Kwik Save Stores v Swain
[1997] I.C.R 49 (“Kwik Save v Swain”),
which states:
“… that it was incumbent on a respondent applying for an
extension of time for serving a notice of appearance before a full hearing on
the merits had taken place to put before the industrial tribunal all relevant
documents and other factual material in order to explain both the non-compliance
… and the basis on which it was sought to defend the case on its merits;
that an industrial tribunal chairman, in exercising the discretion to grant an
extension of time to enter a notice of appearance, had to take account of all
relevant factors, including the explanation or lack of explanation for the
delay and the merits of the defence, weighing and balancing them one against
the other, and to reach a conclusion which was objectively justified on the
grounds of reason and justice; that it was important when doing so to balance
the possible prejudice to each party; …”
37. The Respondent’s submissions then set
out the grounds on which it intends to defend the claim, asserting that:
(a) at all times it acted consistently with the
contract of employment between the parties and maintained the relationship of
trust and confidence between them;
(b) if which is denied, the Respondent did act in
breach of the implied duty of trust and confidence it did so for good reason,
which includes but is not limited to the transfer of its business to TMF;
(c) none of the alleged breaches either alone or
collectively could, in any event, amount to repudiatory breaches entitling the
Claimant to resign and claim constructive unfair dismissal;
(d) the Claimant’s reason for resignation
was unrelated to any alleged breach of contract; and
(e) the Claimant by his conduct (including continuing
to work for the Respondent) affirmed any alleged breaches.
38. The Claimant submits that, the Respondent’s
failure to file a response can, at best, be described as an administrative
error. The Claimant further submits that the Claimant should not be prejudiced
and the Tribunal rules should not be circumvented as a result of the internal
workings or administrative errors of the Respondent.
39. The Claimant’s representative referred
to the case of Gorazd v Drakes and Quayside Café in his
written submissions. However, he
confirmed in his oral submissions that, as it had been agreed that the basis of
the application no longer related to Article 9 of the Procedure Order, he no
longer sought to rely on this case.
Decision
40. I have set out my decision below under the
headings of the two main issues that fall to be determined in this application,
as identified in the Respondent’s submissions.
Was the Claim Form Correctly Served?
41. Article 43(1)(a) of the Procedure Order
allows for the Tribunal to deliver documents to a party by post and Article 43(2)
goes on to say that if it does so “the
document must be delivered to the address given in the claim form”.
The address given under the “address” section in the claim
form was “Lime Grove House, Green
Street, St Helier”. The letter enclosing the claim form was addressed
to Lime Grove House and it has not been disputed that it was delivered there.
42. When sending the claim form the Tribunal
added “The HR Department”
above the address. The Respondent contends that doing so meant the claim form
was not delivered to the address on the claim form.
43. While, it is conceivable that marking a
letter for the attention of a specific person or department could, in certain
circumstances, negate proper service of that letter, in other cases it is
necessary or helpful to add a name or department in order to allow for
expedient service. It is appropriate for a letter regarding an employment claim
against a company of a size similar to that of the Respondent to be sent for
the attention of its HR function. In
addition, the Respondent was not asserting that the HR team were the incorrect
people to receive the claim form.
44. If a company manages its HR function from a
jurisdiction other than where the employees are working then the company should
have in place measures to ensure that correspondence received regarding such
employees is opened and read within a reasonable timeframe. As post is a recognised
method of service in Jersey, provided for by law, companies should give
consideration to this when determining how to manage their post.
45. The Respondent is not arguing that the claim
form did not reach its offices in Jersey and the witness for the Respondent
confirmed she had no reason to believe it did not arrive there within a day or
two of being posted. Accordingly, absent
any submissions or evidence to the contrary, I cannot assume that there has been
an error in the postal system and I find that the
claim form did reach the Respondent’s address within a reasonable
timeframe.
46. I have considered the submissions of the
Respondent in relation to data protection. However, I do not accept that these
are relevant to whether or not the claim form was properly served. Even if, as
the Respondent alleges, the Tribunal were required to take additional steps in
order to comply with data protection requirements, this would not prevent the
claim form from being properly served on the Respondent by post as permitted in
accordance with the Procedure Order.
47. For all the reasons stated above I conclude
that the claim form was correctly served.
Is it Just and Equitable to Grant the Application?
48. The Respondent has stated that the Tribunal has
the power to set aside an Article 12 Judgment in accordance with Ladbroke v
Lawrie. However, in the present
case no Article 12 Judgment has been made.
Instead a case management order to proceed to an Article 12 Hearing was
made. Accordingly, the Tribunal has the power to review this case management
order under Article 20(2) of the Procedure Order, which states:
“A case management order may vary, suspend or set aside an earlier
case management order where that is necessary in the interests of justice, and
in particular where a party affected by the earlier order did not have a
reasonable opportunity to make a representation before it was made.”
49. The Respondent is also seeking an extension
of time to file its Response and pursuant to Article 3(6) of the Procedure
Order the Tribunal has the power to extend any time limits specified in the
Procedure Order whether or not (in the case of an extension) it has expired.
50. Having identified the provisions under which
the Tribunal has the power to grant the Respondent’s application, I must
look at the factors that I should consider when deciding whether to do so or
not.
51. First, I must consider the overriding
objective under Article 2 of the Procedure Order (“Overriding Objective”), which provides that the Tribunal must
deal with cases fairly and justly in a way which is proportionate to the issues
and in order to avoid unnecessary formality and to seek flexibility in the
proceedings before it, but also in order to avoid delay so far as compatible
with proper consideration of the issues and to save expense.
52. I also considered the case of Strata Surveys Limited v Flaherty and Company
Limited [1994] JLR 69 (“Strata v
Flaherty”), where the Court of Appeal was considering an application by
Strata to set aside a default judgment. Strata v Flaherty has recently been
referred to by the Tribunal when granting an extension of time to file a
response in the case of Darren Stower v La Mare
Vineyards Limited [2019] TRE 126.
53. The Court of Appeal in Strata v Flaherty held
that the default judgment should be set aside and referred to five specific
considerations that were made in coming to this decision:
“(1) Strata has a reasonably arguable defence to the claim; (2)
the default arose through no fault of Strata but solely through the error of
their lawyer; (3) there was no delay by Strata before applying to set aside the
default judgment; (4) serious injustice would be done to Strata if they were
not to be allowed to defend the action and to have the claim and their defences heard at trial; and (5) the Plaintiff will suffer
no injustice if the default Judgment is set aside”.
54. The considerations in Strata v Flaherty have
been relied upon in a number of more recent judgments of the Royal Court,
including Watson v Ronez
[2004] JRC 130. In Watson v Ronez the Royal Court applied the considerations defined in
Strata v Flaherty and it also addressed the question of what was required to determine
whether there was a reasonably arguable defence to the claim in more detail. In
answer to this question the Deputy Bailiff at the time stated as follows:
“12. We find it impossible to
lay down any guidelines as to exactly what is required in any particular
case. Much will depend on the circumstances. …
13. As against that, the onus
undoubtedly lies on a defendant. He has allowed a judgment to be
taken against him. He must satisfy the court that his defence is
sufficiently meritorious that the court should exercise a discretion in his
favour to set aside the judgment against him. In most cases we think
a defendant would be well advised to go beyond merely exhibiting a draft
answer. He should swear an affidavit, setting out and explaining, in
simple terms, the essential nature of the defendant’s case in language
which is easily understood, rather than relying upon a pleading with its
technical but sometimes rather uninformative language of non
admissions and denials.
14. We must determine whether, in
this particular case, the Defendant has satisfied us that it has an arguable
defence which carries some degree of conviction. We think that the
Defendant could and indeed should have been rather more forthcoming about the nature
of its defence. But, on balance, we conclude that sufficient emerges
from the draft answer to enable us to say that there is a defence which
justifies being heard.”
55. Strata v Flaherty was also looked at in the
case of Randalls Properties Limited & Ors v
Rozel Bay Hotel & Ors [2005] JRC 106 (”Randalls v Rozel Bay”). While the court considered all of the
factors referred to in Strata v Flaherty, the Deputy Bailiff noted as follows:
“12. … We remind
ourselves that at the end of the day the Court must act in the interests of
justice; it must not be hidebound by lists of factors to come to a conclusion
that it does not consider to be in accordance with the interest of justice.”
56. In coming to my decision I have considered
all of the authority referred to above and I now set out my conclusions below.
The Response
57. In its submissions the Respondent set out a
full legal defence to the allegations of unfair constructive dismissal on the
basis of a breach of the term of mutual trust and consideration. It also cited two factual elements of
its defence in brief terms: that the transfer of the business would provide
reasonable grounds for any breach of the implied term of mutual trust and
confidence and that the Claimant accepted any breaches by continuing to work for
the Respondent. No separate draft response was provided nor was any evidence put
forward in relation to the defence.
58. I must consider whether the information that
has been provided is enough for me to conclude that there is a reasonably
arguable defence.
59. The Kwik Save v Swain case, cited by the
Respondent, requires that “all
relevant documents and other factual material” in order to explain
the basis of the merits of the defence should be provided. Further, the case of
Watson v Ronez recommends that the Respondent should
“swear an affidavit”
setting out the nature of its response.
60. However, I am mindful that Kwik Save v Swain
relates to a UK Industrial Tribunal and Watson v Ronez
refers to Royal Court proceedings and not those of the Tribunal. I also had
particular regard to the principles of proportionality, flexibility and saving
expense, set out in the Overriding Objective. Accordingly, in this case it is
not necessary for the Respondent, at this stage of the proceedings, to provide
the level of documentation referred to in the above cases, so long as sufficient
information in relation to the response is clearly provided to the Tribunal by
some acceptable means.
61. Although it may not be necessary to provide
the same type of documentation as referred to in Watson v Ronez,
as the Respondent is asking the Tribunal to exercise a discretion in its
favour, I see no reason why the level of information to be provided should
differ. I consider that the Respondent is still required to provide sufficient
information “to enable [the Tribunal] to say that
there is a defence which justifies being heard”.
62. The Respondent’s response as set out in
its submissions is made up of a lot of non-admissions and denials and the
Respondent certainly could and, in my view, should have provided more
information in relation to the factual elements of its response. However, a
comprehensive legal response has been given and two factual elements have been
referenced. While I express no view on the prospects of success of the
Respondent’s case, there is just enough information to enable me to say
that there is a sufficiently meritorious response with some degree of
conviction, which justifies being heard.
Default and Delay
63. I must consider why the default (the failure
to file a response in time) came about and what information I have been
provided with in respect of it and whether there was any delay by the
Respondent in seeking to rectify the default once they became aware of it.
64. Absent any contradictory evidence, I accept
the Respondent’s position that the claim form was not read by anyone at
the Respondent before the deadline to file the response expired. However, it is
not disputed that the claim form reached the Respondent’s Jersey office
shortly after it was posted on 2 September 2019. Further, the Respondent has
not provided any information as to what may have happened to the letter between
then and 3 October 2019. Accordingly, and following my reasons under paragraphs
43 to 45 above, I conclude
that the claim form was not read by anyone at the Respondent before the
deadline to file the response expired due to a failure in the internal
processes of the Respondent.
65. It is notable that the Respondent provided
very little evidence to explain the default; only second hand witness evidence
and a redacted email was submitted to demonstrate when the claim form was first
read and no evidence to explain what may have happened to the claim form once
it arrived at the Respondent’s office in Jersey was given. Although it
may not have been possible to show exactly what happened to the claim form, by
giving evidence on how its post is usually dealt with the Respondent may at
least have gone some way to showing that the claim form could have been lost
due to a one-off inadvertent error rather than a lack of care in dealing with its
post.
66. The Respondent became aware of the claim form
and the Chairman’s decision to proceed to the Article 12 Hearing by an
email sent to PM on 26 September 2019 [PM2.2]. However, it is admitted that PM did
nothing with the claim form and no application was made to remedy the situation
until 3 October 2019, when the claim form was found by the Respondent’s
HR team and sent to SP. There was, therefore, a delay of a week after the
Respondent became aware of the claim form before the application was made. That
said, it is also noted that the application was made within the time limit
specified in the Tribunal’s email of 26 September 2019 [24§4].
Injustice to the Parties
67. I have concluded that the Respondent has a
response which justifies being heard. It is therefore possible that the
Respondent may suffer a serious injustice if it is not able to participate in
the proceedings any further. However, I have also concluded that the Respondent
is in the position it is in due to its own fault and has only sought to remedy
the situation at the last moment and with limited evidence.
68. With regard to injustice to the Claimant, these
interim proceedings have caused some delay. The Claimant may also have incurred
some additional costs as a result of them and the Tribunal does not have the
power to make any awards in respect of costs. However, no submissions or
evidence have been put forward in relation to this.
69. I have also taken into account the fact that
an Article 12 Judgment has not been made as the Chairman was unable to make a
determination based on the claim form alone. Therefore, this differs from a
situation where a Claimant already has an Article 12 Judgment in their favour;
if the Article 12 Hearing were to proceed, even without the Respondent
participating, it is not guaranteed that the judgment would have been issued in
the Claimant’s favour.
70. If the case were to continue to an Article 12
Hearing, while the Respondent is not entitled to participate without the
permission of a chairman or deputy chairman, such permission may still be
granted. It is, therefore, likely that to refuse this application would simply
defer the decision as to the Respondent’s participation to a later stage,
which is likely to cause further delay and costs to both parties.
Conclusion
71. The Respondent has shown it has a response
which justifies being heard and, therefore, the potential significant injustice
to the Respondent of not granting the application outweighs any injustice the
Claimant may suffer if the application were to be granted. In addition, although
the Respondent did not address its failure to file a response as soon as it was
aware of it, it did so within the deadline set by the Tribunal. However, the
default of not filing a response in time falls at the feet of the Respondent.
Accordingly, in this case, one of the five considerations set out in Strata v
Flaherty is not met.
72. However, I also have regard to the Deputy
Bailiff’s observation in Randalls v Rozel Bay that the Court “must not be hidebound by lists of
factors to come to a conclusion that it does not consider to be in accordance
with the interest of justice”. In many, if not most, cases, when the
failure to meet a deadline is found to be due to the actions or inactions of
the Respondent, it will not be in the interests of justice to allow an
extension of time. However, I must consider the facts of this particular case,
including the following:
(a) the Respondent has provided a response that
justifies being heard and the potential significant injustice to the Respondent
of not hearing it outweighs any injustice the Claimant may suffer; and
(b) it was not possible to make a determination
of the claim on the claim form alone and to refuse the application would defer
the decision as to the Respondent’s participation to a later stage, which
is likely to cause further delay and costs to both parties.
73. I therefore conclude that, in this particular
case, it would be in accordance with the Overriding Objective and in the
interests of justice to allow an extension of time to file a response and the
Respondent’s application is granted.
Mrs H Westmacott, Deputy Chairman Date:
6 December 2019