Appeal No. EAT/117/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 18 July 1991

	Before

	 THE HONOURABLE MR JUSTICE WOOD MC (P) 

	MR R J LEWIS

	MR R H PHIPPS

(1) THE EXECUTORS OF MRS P J EVANS (DECEASED)	APPELLANT
(2) MR J C EVANS

THE METROPOLITAN POLICE AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR O WARNOCK
Solicitor
Daynes Hill & Perks
Holland Court
The Close
Norwich
NR1 4DX

For the Respondents	MR A GEDDES
(OF COUNSEL)
The Solicitor
Metropolitan Police
New Scotland Yard
Broadway
LONDON
SW1H OBG

	MR JUSTICE WOOD (PRESIDENT):  On 13th January 1984 an Originating Application was issued before an Industrial Tribunal by, amongst others, the Executors of a Priscilla Jane Evans which alleged breaches of Section 6 of the Sex Discrimination Act 1975 or Section 1 of the Equal Pay Act 1970, in that she had been refused permission as a "woman" Police Constable to make contributions so as to enable her to obtain a pension for her widower, who was a "male" Police Constable.  Whereas a "male" Police Constable would be permitted to make those contributions.  I suppose, in the alternative that the Police Pension Scheme failed to provide for a pension for a widower when a widow was provided for under the Scheme.  The Notice of Appearance put a number of matters in issue including dealing with certain points of law.

	At that time in 1983 and 1984, there were two cases which were thought to be directly relevant to the claim being made by the Applicant, namely Roberts v. Tate & Lyle Food and Distribution Limited and Marshall v. Hampshire Area Health Authority.  The latter, incidentally, is on its way back yet again to Luxembourg.  It was thought that it was advisable and sensible to await the decision on those cases in the Court of Appeal and thereafter, possibly in Europe.  As a result, the Solicitors for the Applicant wrote a letter of the 13th January 1984 to the Secretary of the Tribunals in London, suggesting that it might be sensible to adjourn.  The Solicitors to the Metropolitan Police also thought that that was sensible and agreed to the suggestion made by the Applicant's Solicitors by a letter of the 30th January 1984, and they agreed that the matter be adjourned:
"until after the cases referred to in their letter of 13th January have been determined"

	A further letter of the 10th February 1984, from the Applicant's Solicitors to the Tribunal dealt with a number of matters and there was a further letter to the Solicitor for the Metropolitan Police dated 18th April in which at the end of the second paragraph, in dealing with an application for adjournment they say:
"Certainly, we shall renew that application to apply until the two cases have been determined by the European Court of Justice."

and at the end of the last paragraph they say this:
"Our Client's intention would then be to maintain the Industrial Tribunal application and pursue it, if so advised, after the determination of the European Court of Justice on the other cases."

Ultimately, there is a letter from the Solicitor to the Metropolitan Police of the 24th April 1984, the last paragraph of which reads:
"I agree to this matter being generally adjourned until after the determination of the Roberts v. Tate & Lyle Food and Distribution case"

Those documents were clearly placed before Mrs Fiona Stoll, the learned Chairman involved in making the Order, who in May 1984, made an Order in the following terms:
"This case is postponed sine die, ie indefinitely with liberty to any party to apply to have the case restored to the lists for a hearing."

Looking at that documentation, it seems to us perfectly clear that the agreement between the parties was that there should be adjournment until those cases were decided in the European Court and that, as indicated in their letter of the 18th April 1984, there was then to be a renewal of the application to the Industrial Tribunal.

	In fact, the relevant cases were decided in 1986 and were reported in April 1986.  The effect of those Decisions was that the applicant's case would have failed, and there were no other relevant cases that were thought to be in the "pipeline" at that stage.  There was a case called Newstead v. Department of Transport and H M Treasury but that was not directly relevant.  So the application would have been, had it been heard, almost certainly, a failure.

	In May 1990 the case of Barber v. Guardian Royal Exchange Assurance Group was decided, and after that Decision, but some few months after, an application was made for this matter to be restored before an Industrial Tribunal.

	The Tribunal heard argument, and in fact, struck the case out for want of prosecution.  The Decision is set out succinctly and the Tribunal looked at the whole of the background.  They say this in paragraph 3 of the Decision:
"The cases upon which the Applicant originally wished to rely were the cases of Marshall v. Southampton and South West Area Health Authority and Roberts v. Tate and Lyle.  The judgments of the European Court of Justice in both of those cases were delivered on 26 February 1986 and they were reported in the Industrial Relations Law Reports in April 1986.  Nothing further was heard, however, at that point from either party to these proceedings."

It was not until, indeed, 12 September 1990 that the Applicants' Solicitors, having absorbed the decision in the case which had been pending before the European Court of Justice of Barber v. Guardian Royal Exchange Group (1990) 2 CMLR 513;  [1990] IRLR 240, wrote to the Respondents urging that some arrangement for payment might be made by agreement and suggesting that, in the alternative, they would ask for the case to be listed hearing."

Then the Tribunal continue to consider various other matters in the case Barber v. Guardian Royal Exchange Group (1990) 2 CMLR 513; [1990] IRLR 240, and then in paragraph 8 they continue:
"It is apparent from the timetable which we have set forth that when the cases Marshall and Roberts were going forward to the European Court of Justice, the Applicants could not have known that the case of Barber would also, in due course, go before the same Court.  Indeed, it is doubtful whether they could have been aware that Newstead would also be going to the European Court.  Certainly, for a period of some months after Newstead was reported the Applicants could not have known that Barber would also be referred by the Court of Appeal to the European Court of Justice.

After the decisions in April 1986 regarding Marshall and Roberts there was no intimation, either to the Respondents' Solicitors, or to the Regional Office,  that the Applicants desired a further postponement, or that the adjournment should continue in order that any other cases should be determined."

Then the Tribunal fall to consider the principles to be applied and whether the case should be "struck out" for want of prosecution.  

	They direct themselves, in our judgment, perfectly correctly in paragraph 10, they say:
"We have not lost sight of that matter, but in this case, where there has been, by agreement between the parties, a very lengthy postponement purely on the ground that two cases are to be decided by the higher courts, and the time when those cases are decided passes without a comment or request by the party that sought the postponement, we cannot think that it can be right, some two to three years later, to hold any inaction against the party who had originally consented to their opponent's request for a postponement and thereafter had taken no action when cases for which they may have had no interest whatsoever came to be reported as firm decisions.

We consider that in this case there has been an inordinate delay by the Applicants and that it is only right, having regard to that delay and to the prejudice that would certainly ensue by reason of the Respondents having to meet a case which they must have thought was long since at an end, to prepare for it and deal with it, that they should not be required to have to meet such a case."

They therefore decide to dismiss the application for want of prosecution.

	Mr Warnock has addressed a most attractive argument to us.  He submits that there is really no basis for suggesting that there have been inordinate or inexcusable delay, because the adjournment was agreed upon, it was agreed to sine die;  secondly, he submits that there is no serious prejudice here, indeed no grounds at all upon which the Tribunal could have reached that Decision and although therefore mindful of the approach of this Court to appeals where it is a discretion that has been exercised, he submits that there was here an error and that the Tribunal, was plainly wrong.

	Such law as there is available fall within a very short compass on these matters and we derive what guidance we may from those Decision.  The first Authority is the well known case in the House of Lords of Birkett v. James [1978] AC 297, that is the leading Authority when Courts are considering delay in common law actions, especially perhaps in actions for damages for personal injury;  there is an extensive review of all the Authorities which were then in existence.  The judgments of the Court of Appeal are set out in the Report but we need only refer to the leading speech of Lord Diplock at page 318 at "F" where he says this:
"The power should be exercised only where the Court is satisfied either
		(1)  that the default has been intentional and continuous eg disobedience to a peremptory Order of the Court or conduct amounting to an abuse of the process of the Court or
		(2)(a) that there has been inordinate and inexcusable delay on the part
of the plaintiff or his lawyers and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial on the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves or the plaintiff or between each other or between them and a third party"

 	In the present case of course, it is only the latter consideration under (2) that is relevant.

	The effect of Birkett v. James upon the jurisdiction exercised in Industrial Tribunals was considered by a Division of this Court under the Chairmanship of Mr Justice Browne-Wilkinson on the 28 February 1983 in the case of Credit Aid Ltd v. Russell-Taylor, AC EAT 649/82, the facts of that case were that the Tribunal had in fact made an Order allowing certain proceedings to continue despite delay, but it is in connection with Birkett v. James we refer to that Decision.  

	During the Judgment of the Court given by the learned Judge he says this at page 4 at "B":
"In our judgment, although it is probably correct that the general approach of Birkett v. James is equally applicable in the industrial tribunal, we would regard it as very unfortunate if the kind of technical manoeuvring that is applied in some other jurisdictions were to be applied to industrial tribunal proceedings.  The essence of industrial tribunal proceedings is that they should be swift and not technical.  The question is whether the chairman could have properly reached the conclusion in this case that it was not appropriate to dismiss for want of prosecution."

then on the following page in the centre of "D" he says this:
"But, in our judgment, appeal against the refusal to strike out for want of prosecution cannot succeed since it has not been demonstrated to us that it was impossible for the chairman to reach the view that the delay was neither inordinate nor inexcusable."

Applying that test to the present case we must reverse it and see whether it was impossible for the learned Chairman to reach the view that he should make an Order striking out the proceedings.

	There were two later cases to which we referred.  The first is Medallion Holidays Ltd v. Birch [1985] ICR 578, a case in which Mr Justice Waite was presiding in a Reserved Judgment dealt with interlocutory appeals, but it is in connection with the overall approach to the work of Industrial Tribunals that it was cited to us and the passage which is helpful is at page 589 "A" where the learned Judge says:
"The striking-out of the entire notice of appearance was indeed a severe order, one that might even be regarded by many people as harsh.  But it has to be remembered that Parliament has conferred upon the tribunals a jurisdiction of an exceptional kind and has constituted them at the same time masters (within their broadly framed procedural rules) of their own procedure.  They are required to dispense their own distinctive form of justice:  one that keeps formality to a minimum, which shuns legalism, and which sets out to achieve the maximum expedition consistent with fairness to the parties.  Expedition is required not only by the nature of the cases themselves, which frequently involve hard or hurt feelings better given an early outlet than left to be brooded over.  It is also called for by the nature of the remedy which the tribunals are required to provide."

That passage emphasises the independence of Tribunals and their procedures and the importance of not allowing applications to rest idle for extensive periods of time.

	The fourth Authority is that of O'Shea v. Immediate Sound Services Ltd  [1986] ICR 598, a Decision of a Division of this Court presided over by Mr Justice Popplewell, that again dealt with a question of dismissing for want of prosecution.  The passages to which we were referred and which we derive some guidance and help are to be found on page 603 just below "A" when the learned Judge, when dealing with the criticisms of the learned Chairman's Reasons, says this:
"The first one is that the industrial tribunal has not set out in full the reasons for their decision.  This was a very simple case.  Was there a want of prosecution?  All cases which are not prosecuted in time necessarily involve prejudice to the other side and they also involve difficulty in the court ascertaining what took place.  It is not necessary for a tribunal to say 'We have considered prejudice' because it is inherent in the failure to prosecute a case.

The next complaint is that the industrial tribunal not having set out prejudge as a reason, there was no evidence on which the industrial tribunal could have found prejudice.  It is, as we say, inherent from the passage of time.  There was no further investigation necessary.  The chairman decided, in the exercise of her discretion, that the absence of reply to the three letters, but more particularly to the letter in April and the notice in July, was sufficient to enable her to say that there was a want of prosecution which entitled her to decide that the matter should be struck out.  It would have been open to her to have considered re-listing if that is what she thought was proper.  She did not decide that course.  She took the course which we have indicated.  It is not open to us to say that she was not exercising her discretion properly or to say that it was perverse to strike out.

Finally, we would just say this.  Any suggestion that the sort of periods of time which obtain in the High Court before cases are struck out for want of prosecution can apply in industrial tribunals needs to be corrected.  Industrial tribunals should be swift;  in fact they usually are;  and if applicants or their advisers think that the leisurely approach to litigation which obtains in the High Court can happily go on before industrial tribunals, they should be disabused now."

From those cases and the various passages to which we have referred, it seems to us clear, that industrial tribunals do not necessarily have to abide strictly by the guidelines in Birkett v. James though as indicated by Mr Justice Browne-Wilkinson it seems clear that that case applies to industrial tribunals.  The jurisdiction is somewhat different;  the approach is somewhat different, and of course the procedure of industrial tribunals are essentially for them.  It seems to us therefore, that this Court should be slow to reach the conclusion that a learned Chairman had exercised his discretion in a way which was plainly wrong.

	What then is the case here?  The Tribunal, from what we have already read, clearly took the view that this was an agreement and that the Respondents agreed that proceedings should be adjourned until those cases were heard.  There was an indication that their applications would be renewed after those cases were heard, and therefore, that being so there seems a clear element of delay and a failure to restore at least from about April 1986, a delay of some years, they were therefore entitled to find that there was inordinate delay and they were entitled to find that it was inexcusable delay, although Mr Warnock has not divided his submission precisely in that way.  It was inexcusable and it was not justified to stand by  hoping that the law might change, and therefore that the application would become a valid one, whereas in fact anyone considering it in 1986 would almost certainly have advised that there was no reasonable hope of success.

	However, Mr Warnock emphasises perhaps rather more, the issue of prejudice.  The Tribunal were referred to O'Shea and the other cases and the Tribunal reached the Decision particularly in that passage to which we have referred in paragraph 11 of the Decision whereby they say this:
"having regard to that delay and to the prejudice that would certainly ensue by reason of the Respondents having to meet a case which they must have thought was long since at an end, to prepare for it and deal with it,..."

The case involves of course, not only liability but also the results which could flow from the success of the application and it seems to us that in dealing with this matter the Respondents would have had to deal with a great deal of detail, more especially, if in fact one had to consider the effect of any Order that was made.  There might well have to be reorganisation of a Scheme;  there would be enormous disruption;  the Tribunal were not bound to call for detailed evidence, they are entitled to take into account their inexperience of the world and the experience of litigation and the disruption that was involved, and indeed, looked at in that way we cannot say here there was no evidence and no way in which the learned Chairman could have reached the conclusion with the Tribunal that this should not be "struck out".  In other words to go back to the passage in Credit Aid Ltd v. Russell-Taylor it has not been demonstrated to us that it was impossible for the Chairman to reach the view that it was proper to strike out this application.  It follows therefore that we find no error in the legal approach of the Industrial Tribunal;  we certainly find no error in the exercise of the discretion, indeed we would have reached the same conclusion had it been exercising that discretion itself.

	It follows therefore that this Appeal must be dismissed.