Appeal No.  UKEAT/0078/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 April 2008

Before
HIS HONOUR JUDGE REID QC
(SITTING ALONE)

HUTCHISON 3G UK LIMITED	APPELLANT

MISS M FRANCOIS
	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS B CRIDDLE
(of Counsel)
Instructed by:
Robert Joy ELS
31 Glenthorne Avenue
Croydon
Surrey CR0 7ET	
For the Respondent	MRS D FRANCOIS
(Representative)	

SUMMARY

PRACTICE AND PROCEDURE:
	Estoppel or abuse of process
	Review
The Respondent sent an application to the Employment Tribunal which rejected it as being incomplete.  The Respondent then launched a second application out of time.  She also applied for a review of the rejection of the first application.  One of the questions on the determination of the issue whether an extension of time should be granted for the second application was whether particulars had been attached to the first application so that it was in fact complete.  The Chairman dealing with the application held they had not and refused to extend time.  On the subsequent hearing of the applications to review the rejection of the first application another Chairman held on written representations that from his experience the particulars might have been lost by the Employment Tribunal and ruled that the first application had therefore been rejected by administrative error and allowed the review.  He rejected the Appellant’s submission that the Respondent was estopped by the decision of the first Chairman from asserting that the particulars had been sent with the first application and lost.  Held:  he was wrong to do so.

HIS HONOUR JUDGE REID QC
Introduction
1.	This is an appeal against a decision of the Regional Chairman of an Employment Tribunal held at Stratford, the decision being dated 4 December of last year.  The decision was made on review and without hearing any oral argument.  By his decision he held that an application made to the Tribunal on 26 December of the year before had been validly made and there had been an administrative error in not accepting it.  To reach that conclusion the Regional Chairman had to deal, amongst other things, with a matter of issue estoppel.  It is out of his conclusion on that point that this appeal arises.

The Facts
2.	The history of the case is, in procedural terms, a long and somewhat convoluted one.  In September 2006, Miss Francois applied for a job with Hutchison 3G UK Limited at its in-store outlet in Dalston.  She was unsuccessful in her application, as she was informed by telephone on 27 September.  On 26 December she presented a claim at the Stratford Employment Tribunal, which claimed race discrimination and religious discrimination, the essence of the religious discrimination being that she was not considered for the job because she was unable to work on Saturday.  Saturday is, in her religion, she being a Seventh Day Adventist, her Sabbath day.

3.	One of the issues in this case is what it was that was actually sent to the Tribunal.  Whatever it was, was sent by fax and one of the issues is whether there was attached to the ET1 two pages which contained the substance of her complaint.  There was some to-ing and fro-ing once the document had gone in, because the address given for Hutchison 3G UK had been a head office address in SW11.  That resulted in the claim being transferred from Stratford to London South.  But following a telephone conversation with the Tribunal, in which Miss Francois told the Employment Tribunal that the job was to be in E8, the papers were sent back to Stratford.

4.	On 2 January the claim was rejected by Mrs Gay (now Employment Judge Gay) because the claim form contained no details of the claim.  The reason for that was that that Tribunal, certainly at that stage, whatever may have been the position earlier, did not have any of the two pages of particulars which it was said had been attached to the form that was sent in.  With the letter rejecting the claim went the standard form letter informing Miss Francois, amongst other things, of her right to a review.

5.	On 17 January she applied for a review.  At the same time she sent in a further claim form.  The original claim form had been returned to her on 2 January, following the rejection of her application.  But rather than resubmitting it with the application for review, she sent in a new claim form, which had on it, instead of Hutchison 3G UK being named as the employer, 3 Store Dalston care of Superdrug, named as the employer.  Furthermore, this time it did have attached to it particulars, not two pages of particulars but three.  One of the other matters which have been a matter of some debate is why there were three pages on this occasion.  I have been told by Miss Francois’s mother, who represented her today, that the reason that there were this time three pages was simply that when the particulars were printed out they were printed out with a greater line spacing, so they went over to a third page.  The original particulars have never surfaced.  It was said by the mother at a later stage that what had happened was that those further particulars had been used as scrap paper.  Be that as it may, nobody on the side of Hutchison 3G and nobody at any Tribunal has seen those particulars.
6.	The Tribunal failed to notice the fact that there were two separate matters and failed to do anything about listing the review.  It did, however, take the new application form that had been sent in as a fresh application.  Thus from the Tribunal’s point of view and, for that matter, when they became aware of the earlier proceedings, from Hutchison 3G’s point of view there were two sets of proceedings, one of which had not been accepted, but which was subject to a review, the other of which was a second set of proceedings, which had been accepted but which would be out of time if time were not extended.

7.	Following a direction for a pre-hearing review the matter came before a Chairman, Mr Duncan on 15 May.  He pointed out that he was not in a position to conduct a review in relation to the rejection of the first set of proceedings because he was not the Chairman who had made the original decision (that had been Mrs Gay) and he had not been authorised to do so.  But it was suggested he should carry on with the pre-hearing review.  Nobody on Miss Francois’s side, neither she nor her mother, asserted that he had got it all wrong, and there was in fact only one set of proceedings, namely the original unaccepted proceedings were subject to review.

8.	As a litigant in person Miss Francois might have been forgiven for being somewhat confused as to the procedural state of things.  But at least from that point on she can have been in no doubt whatsoever that from the point of view of both the Tribunal and of Hutchison 3G there were two sets of proceedings.  She chose to participate in the pre-hearing review in relation to the second set of proceedings.  Neither she nor her mother said to Mr Duncan, “No, you’ve got this wrong.  There’s only one set of proceedings.  If you can’t conduct a review, you can’t do anything”.
9.	They went through a detailed hearing at which evidence was given, in which the issue was whether or not it was just and equitable to extend time for the second set of proceedings, those proceedings being, it was common ground, 22 days out of time.  In doing so of course, one of the issues that concerned everybody was whether or not there were valid proceedings afoot already.  That depended, in essence, on whether the particulars, which Miss Francois said had been submitted were submitted with the first set of particulars.  If they had been then there would clearly have been an administrative error in that Ms Gay’s decision would have been founded on a mistake of fact, namely that the Tribunal had not had the particulars, and there would have been no reason whatsoever for a second set of proceedings to be launched.  On any footing, as I think has been accepted throughout, it was important for Mr Duncan, in making his decision, to determine whether or not particulars had been provided with the first set of proceedings.

10.	Having heard the evidence he reached a clear conclusion on that subject.  He made findings adverse to Miss Francois.  He then went on and dealt with the question of whether there should be an extension, given that the period of delay was 22 days and it had been conceded by Hutchison 3G that there could be no prejudice to them in such delay.  He refused in all the circumstances to exercise the Tribunal’s discretion.  In doing that one of the matters that he took into account was that he formed an adverse view as to the truthfulness of the Claimant’s mother in some of the matters which were, as he said, highly relevant.  That of course was something he was entitled to take into account.  He then refused an extension of time such as would validate the second claim.

11.	Shortly thereafter, and indeed before the judgment had been delivered to the parties in the Duncan proceedings, if I can call them that, that judgment being sent to the parties on 4 June, Miss Francois chased the Tribunal for a hearing date in relation to her review.  Thereafter, once Mr Duncan’s decision had come out Miss Francois chose to seek to appeal against Mr Duncan’s decision.  She also, on 18 September, wrote to Stratford Employment Tribunal asking to pursue her application for a review of the decision to reject her first claim.

12.	On 10 October the Regional Chairman, Mr Lamb, decided that a review should be held on the ground that the decision might have been wrongly made as a result of administrative error, and on 19 and 20 November the parties put in written submissions, each having been invited to say whether they wished an oral hearing and neither wishing to have such a hearing.

13.	In the meantime, the appeal against Mr Duncan’s judgment had been dismissed pursuant to Rule 3 and new grounds of appeal pursuant to Rule 3(8) had been submitted.  Those in their turn were rejected and a hearing was fixed pursuant to Rule 3(10) for January of this year.

14.	On 4 December, as I have said, Mr Lamb carried out his review and decided that there had been an administrative error and that in effect the first proceedings would be validated.  In doing so, he addressed the issue of issue estoppel, which had been raised, albeit in a fairly lacklustre way, in the submission put by Hutchison 3G.  What he had to say about it was by reference to Munir v Jang Publications Ltd [1989] ICR 1 and Air Canada & Anr v Basra [2000] IRLR 683.  He accepted that Mr Duncan, in order to exercise his discretion, had to consider all the relevant circumstances and that those circumstances had to include an explanation from the Claimant for the lateness of the claim.  That explanation necessarily involved the Claimant in putting forward the course of events which included the submission of the original claim form, with or without the annex to it.  He went on to refer to a passage in Munir where Staughton LJ said:
“… one does not, in my view, look behind the record and enquire what particular facts were relevant to proving the fulfilment of necessary condition in this particular case.  One looks only at the condition itself.  There are many ways in which in general it is possible to prove that other men are on strike.  The finding that other men were on strike in this case was largely, if not wholly, based on what Mr Nissar said to Mr Khan;  but in another case it might have been based on some quite different evidence.  That by the test of Diplock LJ [that is a reference to Thoday v Thoday] does not result in an issue estoppel as to what Mr Nissar said to Mr Khan.”

He applied, he said, the principle and it led him to the conclusion that what was binding was the decision that the claim presented on 17 January was outside the jurisdiction of the Tribunal.  That was what was on the record.  He then said:

“I am not entitled then to go behind the record and use the particular facts which were found and apply them to a different question, should the rejection of the original claim be reviewed and set aside.  Although Mr Duncan made findings of fact about one aspect of the case he was considering, it was in relation only to one of the circumstances which he had to take into account.”

15.	He then jumped from that to say that as a result of his own experience he found it credible that a document could go missing, particularly in circumstances where the documents had been shuffled from Stratford to Croydon and back to Stratford.  He concluded it was an administrative error which caused the rejection of the claim and set aside the rejection.

16.	On behalf of the Appellant here two points are taken on that decision.  The second, about which I need say no more, related to the procedure which the Tribunal had adopted.  The short answer to complaints about procedure seems to me to be that the parties were both offered the opportunity of an oral hearing.  They chose not to avail themselves of it.  Having chosen not to avail themselves of that opportunity, they cannot complain if the Chairman then makes what he can of such material that is put before him.  Hutchison 3G cannot say, “Oh well, if there was no issue estoppel, nonetheless because there was not a rehearing you are stuck with the findings of Mr Duncan”.  That ground, it seems to me, would not be a good one.

17.	However, it does seem to me that there is substance in the first point.  Whilst it is true that issue estoppel may not bind parties to a later dispute in the event of the existence of special circumstances, in general terms the principle can be stated in this way, and I am referring to Mills v Cooper [1967] 2 QB 459:

“A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.”

18.	There are a variety of cases in which the principle has been stated in slightly differing terms and for the sake of completeness I should say that I was referred not only to Air Canada and the Munir cases, to which I referred earlier, and Mills v Cooper but also to Arnold v National Westminster Bank Plc [1991] 2 AC 93 and furthermore by the Respondent, by Mrs Francois, to Sajid v Sussex Muslim Society [2002] IRLR 113 CA and Johnson v Gore Wood & Co [2001] 2 AC 1.  None of those cases seem to me to impinge on that statement principle, but I cite it from Mills v Cooper.  I should add for the sake of completeness that in Munir reference was made to Thoday v Thoday and I have taken the opportunity to have a look at that report as well.  Reference was also made to Henderson v Henderson [1843] 3 Hare 100 but only by reference to citations in the authorities which I have seen, and I have not had the opportunity of revisiting that very familiar case, but it does not seem to me that anything there impinges on what I have to say today.

19.	What was said on behalf of the Appellant was very simply the issue of whether or not the additional pages were attached to the first claim form was fairly and squarely before Mr Duncan.  Consideration of that issue was an essential issue for him to determine in determining the matter which was before him i.e. whether or not it was just and equitable to extend time.  He made a clear finding in relation to that matter.  There is no new material.  There are no special circumstances and, therefore, it was not open to the Regional Chairman, Mr Lamb, to revisit that issue of fact.  It was accepted that that did not preclude Mr Lamb from conducting a review, but it was a review which had to take place against the background that one of the given facts, which neither party could challenge, was that the annexures had not been annexed to the first claim form when it was sent in on Boxing Day 2006.

20.	Miss Francois, who has been very thoroughly represented by her mother, took a substantial number of points.  A number of them were points which were not taken below and found no place in any Respondent’s notice, and which I think were therefore not open to her, but I shall deal with them in any event.

21.	Her first point was to take the Regional Chairman’s statement of the law and simply say, “Well that is right, one cannot go behind the record”.  All the record says is that there would not be an extension of time.  In effect, all the facts leading him to that conclusion are up for grabs.  In my judgment, for the reasons I have given, and in the light of Mills v Cooper this is a misinterpretation of a short passage taken out of context in Munir and that that is not a good response to the Appellant’s argument.

22.	It was then said that in any event the hearing before Mr Duncan was in effect a complete nullity and I should have no regard to any findings of fact he made.  There was, it was said, only one application to the Employment Tribunal, but what happened was that that application was then sent back again, albeit in a marginally different form, with an application to review.  The difficulty about that, of course firstly is that a different Respondent was named, albeit one was a trading name of the other, and at the least the annexure had been reprinted.

23.	A more fundamental problem seemed to me to lie in this.  Although that may be what is now being asserted, I have no evidence before me that it has ever been asserted before today.  I was shown the result of an application to Mr Duncan to review his decision, although not the grounds of the application.  It does not seem to me that the response that he made in his decision on the application for review indicates that there was any suggestion to him that the whole of the proceedings before him had been a complete waste of time and hot air and a complete nullity.

24.	The difficulty it seems to me is that the Respondent, Miss Francois, has in relation to arguing that there was only one application is firstly the fact there were two application forms, secondly that they were treated as two applications, one was rejected, the other was accepted and she took no point at that stage writing in to say, “What do you mean it is now accepted?  I was just asking you for a review of the rejection”.

25.	Then when the matter came before Mr Duncan, and he rightly said he could not deal with the review, it was never said, “Oh but that is the only thing there is for you to deal with; there is only one application”.  Then after the hearing before him, but before his judgment was sent out, the application to review was pursued.  Then not one but two attempts were made to appeal Mr Duncan’s decision, without it ever being suggested, so far as one can tell, that one ought to disregard the decision as being a nullity.  Finally, nothing is put in any Respondent’s notice taking this point.  It comes, in effect, out of the blue at the very last moment.

26.	In my judgment it is perfectly clear that there were two applications; both sides treated the situation as there being two applications and that one cannot simply brush aside Mr Duncan’s decision by saying, “Oh well, he was deciding something that never existed”.

27.	Beyond that it said that Mr Lamb clearly revisited the issue of review.  He was in fact visiting it for the first time, and he was in no position to act as a Court of Appeal from Mr Duncan.  The issue is a simple issue, whether or not he was entitled to disregard the finding of fact made by Mr Duncan.  It was said that it would be extremely unfair if he was not allowed to do so.  It was rightly pointed out that the effect of allowing this appeal would be to shut out Miss Francois from what might or might not turn out to be a good claim.

28.	That is not the issue before me.  The issue before me is whether the Regional Chairman, Mr Lamb, was right in holding that there had been an administrative error.  That in its turn depended entirely on whether or not the annexures had been annexed to the application form when it was faxed in on 26 December.  That in its turn, in my view, was a matter in relation to which he was bound by the decision which Mr Duncan had already made.

29.	It was not for him to extend time on some just and equitable basis.  There was no question of any application to extend time in relation to the first set of proceedings.  That application to extend time had been made in relation to the second set of proceedings.  If the first set of proceedings had the annexure then they were in time and the refusal to accept was based on the administrative error of having separated the two documents, the main application and the annexure.  There was no issue about just and equitable extensions.  That was the province of Mr Duncan in relation to the second set of proceedings which were 22 days out of time.  That set of proceedings was disposed of by Mr Duncan making his findings of fact and then refusing to extend time.  That could have been, and was, subject to review.  The fact that the appeal was not proceeded with, or the attempt to have the appeal permitted to proceed was not proceeded with, because of the decision given by Mr Lamb, but it does mean that so far as just and equitable extensions are concerned, the right to any just and equitable extension in relation to the second claim died with the final disposal of the appeal against Mr Duncan’s decision.

30.	The issue of whether it is just and equitable to extend has not arisen in relation to the first application, because that first application had never been accepted, subject to this point about whether Mr Lamb was entitled to disregard Mr Duncan’s decision.

31.	Since in my judgment Mr Lamb was not entitled to disregard Mr Duncan’s decision it follows, it seems to me, that the decision which he reached was necessarily flawed and, therefore, the appeal must be allowed.

32.	A number of other points were made about Hutchison’s failure to respond to a request for a grievance and alike.  None of those seem to me to be points which were material to the matters in issue.  Simply for the record I should say that Hutchison’s had no obligation to become involved in any grievance procedure with somebody who had never become their employee.

Conclusion
33.	For those reasons I take the view that the Regional Chairman was wrong in his application of the law relating to issue estoppel and the appeal should therefore be allowed.