Appeal No. EAT/60/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 September 1994

	Before

	THE HONOURABLE MR JUSTICE FRENCH

	MISS A MACKIE OBE

	MRS P TURNER OBE

MISS S SOMJEE	APPELLANT

MERSEYSIDE REGIONAL HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON

For the Respondents	MR J BENSON
(OF COUNSEL)
Hill Dickinson Davis
Campbell
Pearl Assurance House
Derby Square
Liverpool L2 9XL

	MR JUSTICE FRENCH:  As will be apparent, we thought that we could best serve the parties and best serve specifically the Appellant by giving judgment tonight rather than reserving the matter.

	In this appeal the Appellant challenges a decision of an Industrial Chairman sitting at Liverpool in December 1993.  We note, as the Appellant would wish us to, that the precise date in December is not stated.  By that decision the Industrial Tribunal ordered that:
	"the Notice of Appearance herein be struck out by reason of the failure to comply in time with a direction is refused."

	The immediate background to the decision just mentioned is that a differently constituted Industrial Tribunal also sitting at Liverpool had published, on 8 June 1993, a decision following a hearing on 24 February 1993, whereby it refused applications by the Respondents to strike out the Originating Applications in this case and also in another case arising between the same parties.  The Industrial Tribunal on the same occasion, refused an application by this Appellant to strike out the Respondents' defence in the instant case.  While refusing both applications, the Industrial Tribunal ordered that
	"a period of 42 days is allowed from the date of promulgation of this decision for the Notice of Appearance to be suitably amended in accordance with this direction."

	Unhappily the Respondents failed to comply with the time laid down in the Order just referred to.  They took at least 37 days and at most 41 or 42 extra days before serving the amended Notice of Appearance.  That failure to comply with the 42 days notice was the ground upon which the Appellant sought once more to strike out the Respondents' Notice of Appearance.  Her application was refused, and it is against that refusal that she now appeals to us.

	The reasons for the June 1993 decision include the following:

		"......... the Tribunal has been most conscious of the considerable delays which have already occurred but also that that cannot solely be attributed to one or other of the parties.  Moreover, the Tribunal itself, even allowing for the extremely difficult general pressures, must acknowledge a share of responsibility.  No-one, unfortunately, emerges without blemish.  Against that background the very firm view of the Tribunal is that it would not be just to accede to either application [I interpose to say the cross-applications to strike out] and that notwithstanding the passage of time, the claim (number 15889/89) [I interpose to say the Appellant's application with which we are concerned] should therefore proceed, and as quickly as possible under present circumstances."

	The reasons for the decision under appeal include the following.

		"Thus the Tribunal considered the causes of the delay until 24 February 1993 and attributed the blame for it equally in 3 directions. [I interpose to say it would be more accurate for the Chairman to have said that the Tribunal considered the causes of delay until 24 February 1993 and attributed blame without actually making an apportionment].  The Chairman in this application declined to go behind that attribution.  It was his task to consider the delay, if any, that occurred after that date."

He then refers to a further unhappy period of delay for which neither of the parties can be held responsible and said:

		"On 24 February 1993, the Tribunal did not immediately decide the applications, but reserved its decision.  It was not possible for the written reasons to be sent to the parties before 9 June 1993."

Reference is then made to the direction that a period of 42 days was allowed.

	At paragraph 7 of the decision the Chairman said:

		"The amendment directed by the Tribunal was not made within the 42 day limit.  Mrs Lawrence [who acted for the Respondents in this case] apologised for that and referred to the difficulties of obtaining instructions from several busy people.  But she did not pretend that the failure to meet the limit was excusable.  The limit provided was generous and the direction should have been complied with in time.

		8.  The amendment to the Notice of Appearance was in fact received on 31 August 1993.  It is the kind of document asked for by the Tribunal but it was 37 days late.  The Chairman had to decide whether to strike out the Notice of Appearance because of the late delivery of the respondents' document.  He reminded himself that he had a discretion whether to do so.  There was no very good reason advanced for the delay.  Time limits are imposed to be observed.  Delays cause distress to parties seeking relief.  But the delay attributable to the respondents here, 37 days, while substantial, is small compared with the overall delay occasioned by the combined fault of the parties and the Tribunal, and by the Tribunal's unavoidable difficulties stemming from the pressure of its workload.  To strike out the Notice of Appearance for this delay would be draconian.  This is a case of importance to both Parties.  It is desirable that it should be heard on its merits:  that can only be if both parties are heard.  It is now at last ready for listing.  It is difficult to discern any substantial prejudice to the applicant occasioned by the 37 day delay.  Her concern to have her case heard may be met by an expeditious listing.  In the circumstances, the application to strike out was refused."

	We would observe that if the Applicant is right in her contentions in the Originating Application she has indeed suffered prejudice of a distressing and serious nature.  Her family circumstances arouse great sympathy.  But in common with the Chairman, we cannot discern any substantial prejudice arising from the additional delay, nor was any such advanced to us.  We bear in mind that the 42 day limit was not one imposed by statute or statutory instrument, but was in the discretion of the Industrial Tribunal.  We have to consider whether the decision not to strike out was perverse; whether the Chairman took into account matters which he should not have taken into account or omitted to take into account matters which he should have taken into account or reached a conclusion which no reasonable Tribunal could properly have reached, or made some error of law.  We are quite unpersuaded that the decision of the Chairman can properly be challenged in these or any other respects.

	This case must be heard.  We direct that a date be fixed for the hearing, even if that means standing out some case which has not got this lamentable history of delay.

	The appeal is dismissed and we would only add two things.  First we give thanks for the clear and attractive way in which the arguments have been deployed on both sides and secondly I draw attention to the undertaking which was given that having regard to the change in the composition of the Respondents, a letter should be written making it clear that whatever the situation may prove on investigation to be, the claim of the Appellant if she succeeds in her contentions before the Industrial Tribunal, will be met.