Appeal No.	 EAT/1455/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 July 2002

Before
MR RECORDER LANGSTAFF QC
MS J DRAKE
DR D GRIEVES CBE

MS O OBASA	APPELLANT

(1) MS KERRY CHISHOLM
(2) MR STEVE MCLIVENNY
(3) NORTHAMPTONSHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR PEDRO OKORO
(Representative)
Messrs Pedro Emmanuel Solicitors
17 Hill Street
Mayfair
London
W1J 5LJ	

MR RECORDER LANGSTAFF QC

1	In this appeal, which was listed for a Preliminary Hearing from a decision of an Employment Tribunal at Bedford, we have been asked by Mr Okoro, who appears today as he did for Ms Obasa before the Tribunal, to grant an adjournment.  

2	The reason why he seeks an adjournment is that he feels unable to do justice to the Appellant’s case himself.  Since he has been the senior partner of the firm handling her case throughout the appeal process, why should this be?  He tells us that on 2 February 2002 he received, on behalf of the Appellant, notice that this appeal was due to be heard by way of Preliminary Hearing on 11 July.  That was an error.  It was due to be heard today, 15 July.  On the basis that the hearing was due to take place on 11 July he instructed counsel.  Counsel became a solicitor advocate in the interim.  He, a Mr Faloui, came to this Tribunal on 11 July, together with the Appellant.  When they did so, we are told, they discovered the case was not then listed.  Mr Faloui, who had prepared the case, is not available today.  

3	What appears to be the reason for the mistake is mixed.  In part, it was the mistake of this Tribunal failing to notify the proper time of hearing back in February 2001.  However, on 
1 July that was remedied by the sending of a further notice which specified that the hearing would take place today.  We are quite sure that if that notice had come to the attention of the Appellant’s solicitors, that they, as would any well organised, responsible firm of solicitors, have picked up, probably immediately, that the date had changed.  Even if Mr Faloui had not been available for today’s date, other representation could have been sought.  The case is long and complex but it is not so difficult that another advocate with a reasonable amount of time could not have got it up.  

4	The reason why the notice did not arrive is, of course, in one sense, a matter of speculation.  Here, however, we feel able to determine a probable cause for it.  That is that the solicitors acting for the Appellant changed their address.  We are told this occurred in April 2002.  Because their new premises are close to their old premises, they made an arrangement with the landlord whereby mail was collected every day.  Accordingly, any mail sent to the old address would, in any event, arrive with them.  This arrangement expired however, on 30 June, so Mr Okoro has told us today.  He has told us that on 1 July, being the first day that mail might no longer arrive and could no longer be collected, he set about telling courts such as this, and others no doubt, of his change of address.  In fact, we note that the change of address which he notified to this Tribunal was sent by Fax which is dated 3 July.  Accordingly, we conclude that the most probable explanation for the Appellant’s solicitors not being aware of today’s date was their own failure to notify this Tribunal at any good or reasonable time of the change of address.  Since the address had been changed since the beginning of April, there could have been no good reason why a change of address notification was not sent during April, May or June, and why it should have to wait for so long as 3 July.  To do so ran the inevitable risk that communications such as that from this Tribunal on 1 July, fell astray.

5	However, we consider that although technically a party might have to accept responsibility for the acts and actions of their representatives, it would be unfairly harsh to visit the shortcomings of her solicitors upon the Appellant in the present case.  She had a difficult case to explain.  She, no doubt, has confidence in her solicitors.  It would be, we think, wrong for us to refuse the request for adjournment simply on the basis of the history that we have outlined.  We should add, it is a pity that the change of address was not notified to the Registrar at this Tribunal when last Friday she refused an application, quite responsibly and sensibly made by the solicitors, on that date for the adjournment of today’s hearing.  

6	Upon the renewed application therefore we think. albeit with some reluctance, that we should accede to Mr Okoro’s application.  We have been assisted in doing so by his commendable frankness before us as to the circumstances.  He has indicated that with the degree of preparation which he has had, that although he prepared the original brief to counsel, and although he participated in the Employment Tribunal hearing, he could not adequately advance the appeal.  If this were any ordinary case of conventional length, we would find that submission difficult to accept.  However, it is a case in which the Employment Tribunal expressed itself in nearly eighty pages of close text.  The issues span the fields of race discrimination, sex discrimination, disability discrimination, health and safety and public interest disclosure.  They concern the detail of no less than three separate Originating Applications made by Ms Obasa to the Employment Tribunal.  At least one of those raises issues of victimisation in addition to the primary discrimination also alleged.  It is important that any Tribunal dealing, as we would have done, with a Preliminary Hearing should be in a position to see whether there is any arguable case, and if so, in which of the several respects that might be the case.  To invite an advocate without due and proper preparation, might, as Mr Okoro himself suggested, open up that advocate to a claim by his disappointed client, if she were disappointed at the end of the day, but, more importantly, would not be achieving proper justice which it is the general purpose and function of the courts to supply.

7	Accordingly, with regret in the circumstances, we allow the application for an adjournment.  We have, in the lunch period, attempted to explore with the Listing Officer, and with the assistance given through our Clerk for Mr Okoro, whether or not the matter might be re-listed in a way which would make efficient use of the time already spent by members of this Tribunal.  No particular date has, as yet, emerged when this might occur.  Accordingly, the case will return to the lists.  It will be re-listed for hearing at some future and convenient date.  If it is convenient, then it may well be that it will be re-listed before me, but it may not be that the two Lay Members will be in a position to be present.  If, however, it is not convenient then some entirely fresh Tribunal will have to grapple with the considerable volume of documentation that there is.  One thing would however be of assistance to that Tribunal which Mr Okoro might usefully be able to provide in the interim.  That is a chronology.  It would be helpful if there were, setting out by detailed reference, first to date, secondly to event and thirdly giving a reference to the decision of the Tribunal by the page of the bundle upon which the reference occurs and then the paragraph, to the most important events in sequence upon which the Appellant will seek to rely.  This might make the task of the advocate, whoever he or she may be, and the Tribunal at the next hearing, some considerable degree easier.  

8	I should mention in passing that in the Notice of Appeal it is not entirely clear whether some of the paragraphs intended to be referred to are paragraphs which bear the number they do in the text, or whether the number, the numerical reference, is a reference to the sub-paragraph of paragraph 20, which is the main and extensive fact finding paragraph in the Tribunal decision.  It would be helpful if this were borne in mind so that the position might be clarified before the next hearing.  Finally, it remains for us to thank Mr Okoro for his, albeit brief. assistance.