Appeal No. EAT/1455/01/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 June 2003

Before
HIS HONOUR JUDGE J BURKE QC
MR D CHADWICK
MS B SWITZER

MS O OBASA	APPELLANT

(1) MS KERRY CHISHOLM 
(2) MR STEVE MCLIVENNY
(3) NORTHAMPTONSHIRE COUNTY COUNCIL
(4) MRS SALLY BRESNAHAN
RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J SYKES
(Representative)
Instructed By:
Messrs Emmanuel
Solicitors
16 Dover Street
Mayfair
London W1S 4LR	
For the Respondents	MR A THOMAS
(of Counsel)
Instructed By:
Northamptonshire County Council
Legal Services
PO Box 104
County Hall
Northampton NN1 1AW	

JUDGE J BURKE QC:

1	This is, or was to be, the adjourned hearing of Ms Obasa’s appeal against a decision of the Tribunal which rejected her claims of discrimination and victimisation.

2	We are going to adjourn the appeal again.  We are going to place it back in the Warned List to be re-listed as soon as possible.  It was reserved to be restored in front of me, for reasons which we will explain.  It should no longer be reserved to me and, indeed, I should not hear anything in relation to this case in the future.  

3	The Preliminary Hearing of this appeal took place as long ago as 15 July 2002.  On that occasion the Employment Appeal Tribunal, presided over by Mr Recorder Langstaff QC, permitted Ms Obasa’s appeal to go forward to a full hearing on one issue only, arising from a decision of the Tribunal which is some 78 pages long and which decided a very large number of issues.  

4	We have been told today that the Court of Appeal, presumably on an application for leave to appeal, rejected any appeal to the Court of Appeal from the preliminary hearing and, therefore, the preliminary hearing’s decision that there is one ground of appeal only stands.

5	The appeal was listed for a full hearing on 2 April of this year.  It was listed before the Employment Appeal Tribunal, chaired by the same Judge as today, but with two different lay members.

6	Shortly before the hearing, on 28 March, the Registrar of the Employment Appeal Tribunal received a fax from the clerk to Mr Sykes of Counsel, who was instructed on behalf of Ms Obasa the Appellant and who had appeared at the preliminary hearing, forwarding a Skeleton Argument and saying that Mr Sykes was appearing in the Commercial Court on the morning of 2 April and asking if the appeal could be listed for 2 pm.  The Employment Appeal Tribunal responded that it could not, that it was listed for the morning and, indeed, it was listed for that morning.  On that morning, 2 April, no one appeared to represent Ms Obasa.  

7	Just before the case was called on, or possibly just before the court started its morning session, a message was received from Mr Sykes’ clerk saying that he was ill.  The previous day Ms Thomas, Counsel for the Respondents, had sought to contact Mr Sykes in order to exchange Skeletons and discuss bundles and authorities and matters of that kind, but was not able to get any response, save that in one discussion with Mr Sykes’ clerk, either on the evening of 1 April, or on the morning of the 2nd , he indicated that Mr Sykes was not well.  

8	No one came to the Employment Appeal Tribunal to explain when Mr Sykes was taken ill or what the illness was.  There was no medical certificate;  no substitute barrister or solicitor appeared; no clerk appeared to provide an explanation.  Ms Obasa was simply left unrepresented.

9	In the light of the fax of 28 March which indicated that Mr Sykes was going to be elsewhere on that morning and the whole history, the Employment Appeal Tribunal on that day adjourned the appeal and ordered that Mr Sykes should serve an affidavit to explain his non-attendance at the hearing and lodge medical evidence in respect of that non-attendance, within 48 hours.  No such affidavit was presented.

10	On 9 April Mr Sykes compiled a letter which was faxed to the Tribunal in which he said that he had learnt of the requirement to swear an affidavit that same day, that he had not known about the requirement before, that he had been taken very ill on 1 April, having been ill for three weeks previously, having had a recovery, but having then had a relapse and that he had not been to see a doctor and, therefore, could not provide any medical evidence.  However, in the same letter, he said, that during 2 April he had in fact, rather than being here or being too unwell to appear in court, been in the Commercial Court.  No affidavit was provided.  The EAT’s records show that Mr Okoro, the solicitor instructing Mr Sykes, was reminded on 22 May of the requirement for an affidavit and was asked to arrange that it be lodged by 30 May and that on 28 May a letter was sent to Mr Sykes, directly to his chambers, to the same effect.

11	The appeal was re-listed in front of the Tribunal, as at present constituted, for hearing today.  

12	On 12 June, that is last Thursday, Mr Sykes’ clerk sent a fax to the Tribunal saying that Mr Sykes had been informed of the need to supply the court with his Skeleton Argument (it being unknown at that stage that there was, in fact, a Skeleton Argument that had been provided on 2 April) and that that had taken longer than expected;  the situation had been delayed by the passing away of a relative and “his attendance at the funeral today”.  No reference is made in that fax to Mr Sykes not having been instructed in this appeal.

13	At 11:58 am on 16 June, that is yesterday, the EAT received a fax from Mr Sykes’ solicitors stating that they had just been informed by Mr Sykes that he would be unable to attend the hearing scheduled for 17 June;  and the letter said, “kindly adjourn the hearing”.  The EAT replied by fax immediately saying that the Deputy Registrar had directed that the matter remain in the list.  The Judge presiding today saw the letter from the solicitors at about 4:50 pm yesterday and immediately directed that a letter be sent, by fax, directing that counsel must be present at the hearing today;  and that was sent by fax by the EAT forthwith.

14	This morning we received an application in writing that Mr Sykes was in another court and “could we please list the case not before 2”.  The EAT sent out an answer saying that the case was listed for 11:45 and counsel was expected to be here at 11:45.  Nobody was here at 11:45 or earlier during today.  We caused enquiries to be made of Mr Sykes’ chambers.  We were told that Mr Sykes was not there and that Mr Sykes’ clerk had nobody else in chambers that he could send as a substitute.  It was not suggested that Mr Sykes was not instructed.  Mr Sykes’ mobile number was provided.  

15	As it happens the first appeal in our list today was not finished until after 1 o’clock.  Sometime before 1 o’clock, as we understand it and Ms Obasa has confirmed, both the usher and Ms Obasa spoke to Mr Okoro.  He said that Mr Sykes was coming from another court, that he was in East Croydon;  that his case should be finished and that he would be here by 2 o’clock;  and later, at about 1:20 Mr Okoro, or somebody from his office, spoke to the usher again and said that he had spoken to Mr Sykes who was on his way and would be here by 2 o’clock.  10-15 minutes later there was another message, this time from Mr Sykes, saying that he was on East Croydon Station and he should be here by half past 2.  Mr Sykes said that he was not instructed to attend the appeal but, having been told that he must be here, he would be here.  Shortly afterwards there was a further message that he was still on East Croydon Station and that there was no train until 2:27.

16	We accordingly waited until well after quarter past 3 before re-convening the court, discussing the position with Ms Thomas and Ms Obasa and deciding that there would have to be another adjournment and retiring to consider the terms on which we would make that adjournment.

17	At about 3:40 pm, while we were still considering, we were told that Mr Sykes had arrived;  and Mr Sykes has, indeed, arrived and has told us that he was not instructed to appear today, but was booked, before this case was reassigned for today’s list here, to be in the Employment Tribunal in Croydon and that it has always been the position that he was not instructed today;  that when a Skeleton Argument was called for by the EAT, he got in touch with his solicitors and told them that he was not instructed.  For whatever reasons nobody was here today, as indeed was the case last time.  

18	Mr Sykes has said today that there is only one point in this appeal;  and that, even at 4 o’clock the time that he finished making his remarks to us, that one point could be started and finished in half an hour and that he was prepared, although he had not prepared the case and not got it up, to put forward Ms Obasa’s case on her behalf, so as to avoid the difficulties caused to her and anybody else by another adjournment.

19	It is absolutely plain as a pikestaff that this case could not be dealt with an half an hour or, for that matter, in an hour.  Nor would it be fair to Ms Obasa for an attempt to be made to shoehorn it into a brief period only, however late we sat, in circumstances in which her counsel had not had the opportunity to prepare the appeal on her behalf, albeit that he had been at the preliminary hearing and made the application, it seems, to the Court of Appeal.  

20	We have absolutely no doubt, despite the difficulties that this will inevitably cause, that there must be another adjournment.  There is, in any event, another reason.  I have made it clear to Mr Sykes and to Ms Obasa that, because of what happened the first time round, I felt it necessary, as part of my professional duty, to report what had occurred to the Bar Council.  It also seemed to me to be my duty to declare that, so that there could be no question about that having been concealed from Mr Sykes or Ms Obasa and I have done so.  That, having been done, it seems to me, particularly since the circumstances in relation to both occasions when there has been nobody here on behalf of Ms Obasa, need investigation, which investigation should probably not take place in a Tribunal of which I as Chairman am part, for those reasons it is essential that this matter be adjourned, although it would have to be adjourned, even if there was not the complication to which we have just referred.

21	What we propose to do is this.  This appeal will be adjourned.  It will be placed back into the Warned List.  It must be re-listed as soon as possible.

22	We require both Mr Okoro and Mr Sykes to swear and file an affidavit with the Employment Appeal Tribunal.  In Mr Okoro’s case the affidavit should set out why nobody has been here, instructed on behalf of Ms Obasa to represent her today;  and from Mr Sykes, giving his explanation of his non-attendance on the last occasion and on this occasion.

23	All questions of costs will be reserved to whoever eventually hears this appeal.  On that occasion Mr Sykes and Mr Okoro should give thought to the need for them to show cause as to why an order for costs should not be made in such terms as would effectively require one or both of them to pay the costs that have been thrown away.  We put it that way, because, at least at this stage, we believe that there is no power to make a Wasted Costs Order in the Employment Appeal Tribunal and that the Employment Appeal Tribunal, if it wants to make an order which has the effect that it would have to be paid by Ms Obasa’s legal representatives, can only do so on the basis of making an order against Ms Obasa, while making it clear that it is to be paid by legal representatives and extracting an undertaking from the Respondents (which they say they are happy to give) that if not paid by the legal representatives, they would not enforce the order.  But it may be that different arguments on the nature of an appropriate costs order can be presented to the division of the Employment Appeal Tribunal which eventually hears this case and decides on the matter of costs.