Appeal No.	 EAT/1470/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 January 1999

Before
HIS HONOUR JUDGE H WILSON
MR R SANDERSON OBE
MISS S M WILSON

IMS (LONDON) LTD T/A IMS ENVIRONMENTAL	APPELLANT

MR C D GAMBLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS S GARNER
(of Counsel)
Messrs Breeze & Wyles
Solicitors
114 Fore Street
Hertford
Herts  SG14 1AG	

	JUDGE H WILSON:		This is an appeal against the decision of the Leicester Industrial Tribunal to refuse an application by the Applicant today for a review of a decision of the Tribunal made on 7 October 1998.  Today’s appeal is brought under the provisions of Rule 11(1)(c) of the Industrial Tribunal Regulations 1993 First Schedule, and that provides that a Tribunal shall have power to review any decision on the grounds that it was made in the absence of a party.  That was the basis upon which the application was made to the Chairman of the Industrial Tribunal.

	Clause 5 provides that an application for the purposes of paragraph 1 may be refused by the Chairman with the Tribunal which decided the case if in his opinion it has no reasonable prospect of success.

	We have had regard to Miss Garner’s skeleton argument for today’s preliminary hearing and we have had regard also to the cases to which she has referred us, and in particular, to the decision of this Employment Appeal Tribunal in the cases of Morris v Griffiths [1977] ICR 153 and Drakard (P J) & Sons Ltd v Wilton [1977] ICR 642.  In neither of those cases we note, was there any history of prevarication, such as is referred to in the decision under appeal and in our view we should distinguish those cases for that reason.  

	With regard to this very experienced Chairman’s decision and the reasons upon which he has exercised his discretion, we have regard also to the material which would have been before him on the occasion when the hearing proceeded in the absence of the Appellant.  This included the appearance in answer to the application by the successful employee as he turned out to be.

	It is a matter for judicial notice that that appearance would be before the Tribunal Chairman and his colleagues when they received the papers for the hearing, with which they went ahead in the absence of the Applicant.

	When we turn to the Chairman’s reasons for refusal, he had a discretion in the matter, and as I have said it seems to us that we have to view the exercise of that discretion against the background of prevarication in this particular case, which is set out in the decision by which he refuses review.  He sets out what he calls in paragraph 5 of the reasons, the history of prevarication and the failure to make any contact with the Tribunal by any reasonable time on 7 October.

	We have listened with care to everything Miss Garner has had to say, but she has totally failed to satisfy us of any reasonable reason why the Tribunal was not informed that the Respondent would not be able to attend timeously.  We can see absolutely no valid reason why that should not have happened before the Tribunal was due to sit, neither can we conceive of any reason why, at some stage or another what the Applicant asserted was not supported by a medical certificate.  It is a matter of ordinary common sense.  

	In those circumstances, this application is dismissed.