Appeal No. UKEAT/0327/08/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 April 2008

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

JARRETTS MOTORS LTD 	APPELLANT

MR H WELLS	RESPONDENT
(DEBARRED)

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR L GODFREY
(of Counsel)
Instructed by:
Messrs Fynmores Solicitors
10-12 Parkhurst Road
Bexhill-on-Sea
East Sussex  TN40 1DF	
For the Respondent	No appearance or representation by or on behalf of the Respondent
(DEBARRED)	

SUMMARY
PRACTICE AND PROCEDURE:  Striking-out/dismissal
Respondent failed to present response in time and was accordingly debarred under rule 9 – Judgment given following Hearing at which Respondent not permitted to participate – Application for review disallowed because made purportedly under rule 33 not rule 34 

Held: application should have been considered as an application under rule 34 - D & H Travel [2006] ICR 1537 followed - Observations on Chowles v West (UKEAT/0473/08)

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	This is yet another case about the inter-relationship of rules 4-6, 8-9, and 34-36 of the Employment Tribunal Rules of Procedure (being Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004).  These rules constitute a particularly tricky shoal on which respondents too often wreck themselves, and among which this Tribunal has on more than one occasion had to employ some very subtle navigation in order to effect a rescue in the interests of justice: see in particular the cases of Moroak (t/a Blake Envelopes) v Cromie [2005] ICR 1226, NSM Music Limited v Leefe [2006] ICR 451, D & H Travel Ltd v Foster [2006] ICR 1537 and Terry Ballard & Co v Stonestreet UKEAT/0568/06.  

2.	The rules in question are elaborate, and I need not set them out in full.  Their effect can be summarised as follows:

(1)	Rule 4 requires a respondent to present a response within 28 days of the date on which he was sent a copy of the claim.  The response must be on the prescribed form and contain the required information.  There is a power to extend the time for presentation but the application must be made within the primary time limit – a stipulation which makes the power unusable in the circumstances where default is most likely to occur.

(2)	Rules 5-6 provide for the rejection of non-compliant responses.  A formal decision by the chairman is required under rule 6.  In the event of rejection the claim is to be dealt with as if no response had been presented.

(3)	Where no response has been presented, or a response has been presented but rejected, the Chairman may, but need not, issue a default judgment under rule 8.

(4)	Where a default judgment is issued, the respondent can apply for a review under rule 33:  that is expressly provided for at rule 8(5).

(5)	Rule 9 provides as follows:
9	Taking no further part in the proceedings
A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to
(a)	make an application under rule 33 (review of default judgments);
(b)	make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3)(a), (b) or (e);
(c)	be called as a witness by another person; or
(d)	be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37;
and in these rules the word "party" or "respondent" includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.

(6)	Rule 34 provides as follows:
34	Review of other judgments and decisions
  (1)	Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are
(a)	a decision not to accept a claim, response or counterclaim;
(b)	a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and
(c)	a decision made under rule 6(3) of Schedule 4;
and references to “decision” in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules.
…
  (3)	Subject to paragraph (4), decisions may be reviewed on the following grounds only
(a)	the decision was wrongly made as a result of an administrative error;
(b)	a party did not receive notice of the proceedings leading to the decision;
(c)	the decision was made in the absence of a party;
(d)	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time, or
(e)	the interests of justice require such a review.
  (4)	A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraphs (3)(a) and (e).
  (5)	A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraphs (3) or (4).

I need not set out the details of rules 35 and 36, which cover the details of how the power under rule 34 is to be exercised.  In summary, rule 35 provides for a “preliminary consideration of the review application” on paper, to establish whether any grounds for a review have been shown.  Rule 36 provides for a hearing if the application passes the preliminary consideration.

3.	The facts giving rise to the issue in the present case can be summarised as follows:

(1)	On 8 February 2008 the Claimant presented a claim in the Employment Tribunal alleging that he had been unfairly dismissed by the Appellant.  The managing director of the Appellant is a Mr Wilmoth.  The business trades under the name of Wilmoth Citroen, and I assume (though nothing turns on this) that Mr Wilmoth is the principal owner of the Appellant company.  

(2)	On 11 February 2008 the Ashford Tribunal sent to the Appellant a standard-form notice of claim informing it inter alia of the obligation to enter a response “within 28 days of the date of this letter”.  That language might if taken by itself be ambiguous, at least to a litigant who did not appreciate that time ran from the date of despatch of the letter whenever it was received; but any ambiguity was removed by an express statement in the following terms:  
“If your response is not received by 10/03/2008 and no extension of time has been agreed by a chairman before that date, you will not be entitled to defend this claim.”

That statement of course reflects the provisions of rules 4 and 9.  The evidence is that the letter was not received by the Appellant until 28 February.  Probably this was because the Claimant had given the wrong postcode in the claim form:  I should also observe at this point that he had mis‑spelt the Appellant’s name - spelling it as “Jarrots Motors” rather than “Jarretts Motors”.  But of course even with that delay the Appellant had ten days in which to present a response.  

(3)	Mr Wilmoth did not at first seek legal advice, and he did not file a response by 10 March.  As I understand it, he says that he thought he had 28 days from the date of receipt, although as I have already pointed out that is inconsistent with the clear statement in the letter.  

(4)	On 12 March 2008 the Appellant was sent a notice from the Tribunal to the effect that since no response had been presented it was not entitled to take any further part in the proceedings, subject only to the exceptions specified under (c) and (d) of rule 9.  By virtue of the terms of rule 9 that consequence automatically follows from the non‑presentation of the response.  It is not therefore strictly speaking an order: see per Elias J in D & H at paragraph 14 (p. 1541).  It is clear that the Appellant received that letter promptly, notwithstanding the continuing use of the wrong postcode, because on 14 March Mr Wilmoth instructed solicitors in relation to it.  

(5)	By further letter of the same date the Appellant was sent notice of a hearing at the Ashford Tribunal on 26 March.  The hearing in question was described as being for the Claimant’s claim to be heard: it was accordingly a Hearing within the meaning of rule 26.  Although on the face of it it seems likely that this was received at the same time as the other letter, that cannot be assumed, given the use of the wrong postcode; and there is in fact some question as to whether it was received at that point - see below.  

(6)	As I have said, Mr Wilmoth sought legal advice on 14 March 2008.  By letter of that date, solicitors instructed by the Appellant, Messrs Fynmores, wrote as follows:  

“RE:  Mr Harvey Wells v Jarretts Motors Ltd t/a Wilmoth Citroen
Case No: 1100369/2008/AG

We have today been instructed by the above-named Respondent.  Please note the correct spelling of the Respondent’s name.  We are instructed that only yesterday did the Respondent appreciate that a response was required by 10th March 2008.  This is a case where the Respondent claims that the Claimant resigned.  There was no dismissal. 

In any event the issues involved are currently the subject of a Police investigation, so it would be inappropriate for the Tribunal to consider the merits of the matter until the Police have completed their enquiries.  In the circumstances we are seeking a retrospective extension of time for the filing of the Response form for a period of say 2 months or until the Police have completed their investigations.

We should be grateful if you would place this request before the Chairman.  We have sent a copy to the Claimant’s solicitors. 

We hope that the Claimant will appreciate that given the Police enquiry it would be wrong for the Respondent to set out in detail the nature of the Response (save that there was no dismissal), as the detail consists of the evidence now presented to the Police which is the subject of their criminal enquiry.”

(7)	The application for an extension of time for the filing of a response was misconceived since it is quite clear from the terms of rule 4 (4) that a Tribunal has no power to extend the time for presentation of a response after the original time limit has expired.  On 25 March 2008 the Tribunal wrote to Fynmores pointing that out.  

(8)	On the morning of 26 March 2008 Fynmores wrote again to the Tribunal by fax, sent apparently some half an hour before the hearing of that date was due to start.  The letter referred to the refusal of the application for an extension of time but applied for the Appellant to be given leave to be heard as to remedy and for that issue to be adjourned.  Fynmores said that Mr Wilmoth had only just informed them of the hearing.  They said that he was unable to recall when he had first heard of it himself and that he would be attending without legal representation. 

(9)	The hearing duly proceeded on 26 March before Employment Judge Wallace sitting alone.  She was entitled to sit without lay members by reason of s. 4 (3) (g) of the Employment Tribunals Act 1996 (see John Lamb Partnership Ltd v Parfett UKEAT/111/08).  The Claimant was represented by counsel.  The Appellant was present by Mr Wilmoth, but he was not of course permitted to take any part by virtue of the operation of rule 9.  The Tribunal apparently considered, but did not accede to, the application made in Fynmores’ letter for an adjournment of any issues as to remedy.  At the conclusion of the hearing the Employment Judge held that the Claimant had been “automatically unfairly dismissed by the Appellant”, i.e. presumably that his dismissal had been unfair by reference to s. 98A (1) of the Employment Rights Act 1996, and ordered compensation in the sum of £15,394.39.  A judgment to that effect was signed on 27 March and sent to the parties on 28 March.  I have no information about what happened at the hearing, but it must be presumed that the Claimant gave or called evidence which established to the Judge’s satisfaction that he had been dismissed, that the statutory disciplinary and dismissal procedure had not been complied with and that he had suffered loss in the amount awarded.  

(10)	On 7 April 2008 Fynmores wrote to the Tribunal seeking a review of what they described as the “default judgment given on 26 March”.  The application was contained in a formally pleaded document, though some of the matters in it were repeated or amplified in the covering letter.  Both in the letter and in the title to the formal application document the application was described as being pursuant to rule 33:  it is common ground before me that that was incorrect because the Tribunal’s judgment was not a default judgment.  Paragraph 2 of the formal application reads as follows:  

The grounds of the application are that it would be just and equitable to grant a review in all the circumstances and that in particular the judgment is against a party other than the Respondent in that the Respondent employer is Jarretts Motors Limited whereas the named Respondent in the judgment is Jarrots Motors Limited.

Read by itself this would suggest that the only point being taken was the mis-spelling of the Appellant’s name, which would by itself have hardly been a compelling ground for review.  However, paragraph 3 reads as follows:  

“The facts of the matter on which the Respondent relies are as follows:

a.	although the notice of application is dated 11 February 2008 and was apparently sent to the parties on that date it was not received by the Respondent until on or after 28 February 2008;

b.	the Respondent is supported in that belief as:

i.	a note was made immediately on receipt of the papers that the 28 March was the date a response was required having noted the 28 day requirement in the documentation;

ii.	the notice of application was addressed wrongly to Jarrots Motors Limited rather than Jarretts Motors Limited and more specifically was sent to a post code in Hastings i.e. TN35 0SH rather than the post code of the Respondent in Battle of TN33 0SH thus almost certainly requiring re-direction and creating delay.  The Respondent regrets that it relied wrongly on the belief that it had 28 days from the date of receipt of the papers to respond.

c.	the Respondent has a good and arguable defence to the claim in that the Respondent claims that the Claimant was not dismissed but resigned and that furthermore the circumstances of that resignation was that the Claimant could not account for some £77,000 the value of missing cars and/or money which is now the subject of police investigation.”

(11)	By a letter dated 17 April 2008 the Tribunal wrote to Fynmores in the following terms:  
“The Employment Judge has noted the Respondent’s representative’s application of 7 April 2008 and has asked me to reply as follows:-

1. 	There was no default Judgment in this case.  There was a Hearing followed by a Judgment.

2. 	The Claimant’s representative may have supplied some inaccuracies in the Respondent’s name and address but there is no doubt that the papers arrived at the Respondent’s premises, before the expiry date for a Response. 

3. 	It is not possible under the rules to grant an extension of time once the time limit has expired; see our letter of 25 March.

4. 	No grounds have been put forward on which the application for a review is made (see rule 34).

The application is therefore refused.”

The reference in paragraph 4 to rule 34 is ambiguous.  On first reading I took it as an indication that the Employment Judge had in fact been prepared to consider whether, notwithstanding that the application was made under the wrong rule, the Appellant had shown grounds for a review under rule 34, which would have been the correct basis for any review application.  But in a subsequent letter to this Tribunal, primarily directed to another point, the Judge appears to say that her intention was rather to draw the Appellant’s advisers' attention to rule 34 and to invite an application under that rule.  If so, I have to say that the hint was distinctly subtle.  

(12)	On 21 April 2008 Fynmores sent the Tribunal an e‑mail asking for a review of the decision of 17 April on the basis that the Judge was wrong to say that her judgment of 26 March was not a default judgment.  In fact, it was they and not the Judge who were wrong about that.  In any event, the Judge had no power to review her earlier order, at least in the strict sense: there is no power to review a decision on a review.  (It might arguably have been open to her to revoke it under rule 10 (2) (n), but that is not a matter on which I need to express any view.)  The Tribunal replied on 9 May to the effect that the Judge could add nothing to her letter of 17 April.  

4.	On 27 May 2008 the Appellant lodged an appeal against the Judge’s decision of 17 April, that is to say the decision not to review the judgment of 26 March.  At a preliminary hearing on 11 November, formally attended only by the Appellant, Elias J permitted the appeal to proceed to a full hearing.  He gave permission to the Appellant’s counsel to amend the Notice of Appeal as originally lodged.  An amended Notice was duly lodged on 19 November and approved by Elias J.  One of the amendments was the introduction of a challenge to the original judgment of 26 March.  Such a challenge would appear to have been out of time, but by approving the draft notice I think that Elias J must be taken to have given permission in that regard and to have extended time for that purpose;  but in any event nothing turns on this.  

5.	Although the Claimant’s solicitors had lodged representations for the purpose of the preliminary hearing and had indeed instructed counsel to appear with a watching brief, they subsequently came off the record and no Answer was lodged in response to the Amended Notice of Appeal as required by Elias J’s order.  The Claimant did not at first respond to chasing correspondence from this Tribunal.  On 5 January 2009, however, he e‑mailed the Tribunal to ask for an extension of time.  He was granted an extension until 16 January, but expressly on terms that failure to comply would result in him being debarred from taking any further part in the appeal.  He did not lodge an Answer within the extended period, and on 19 January an order was accordingly issued recording that he was debarred from taking any further part in the appeal.  I should say in this connection that it seems from the Claimant’s e‑mail of 5 January, and also from an earlier letter in the file from Fynmores, that there is a question mark over whether correspondence sent to the Claimant’s home address, as this Tribunal understood it to be, would in fact have reliably reached him; and it is a possibility ‑ I put it no higher ‑ that in consequence he may not have had notice of the present hearing.  Certainly he has not sought to attend;  but that would not necessarily be a critical matter given that he had in any event no entitlement to take part in the proceedings.  I have ascertained that both the order granting him an extension and the subsequent debarring order were sent to him by e-mail at the e-mail address from which he had himself communicated with this Tribunal.  I should also say that in his e-mail the Claimant, while explaining that there were delays in his post reaching him, made it clear that he had received previous communications and did not give any other postal address.  In those circumstances I have thought it right to proceed with the hearing of this appeal, and Mr Godfrey, who appears for the Appellant, was content that I should do so.  

6.	I can now therefore at last turn to the issues raised.

7.	The Amended Notice of Appeal puts the Appellant’s case in various ways;  but I start with grounds (b) and (c), which contend that the Judge was wrong to reject the Appellant’s review application of 7 April on the basis that it was made under rule 33, and that she should have been prepared to ignore the erroneous label and treat the application as having been made under rule 34. 

8.	In my judgment that contention is well‑founded.  The application was explicitly made on the basis that a review was required in the interests of justice, which is one of the grounds specified under rule 34 (3) (e), and which is expressly preserved in the case of respondents who have been debarred under rule 9.  The substantive matters relied on were all appropriate to a review under rule 34 as much as to one under rule 33, and the application was made within the appropriate time limit.  It was perfectly clear as a matter of substance that what the Appellant wanted was for the judgment of 26 March to be revoked on the basis that it had had no opportunity to contest the claim.  Whether the judgment was a default judgment or one reached following a hearing in which the Appellant had not been permitted to participate made no material difference.  As Burton J pointed out in Moroak, for practical purposes the effects of rule 8 and rule 9 come to much the same thing:  see paragraph 16 (p. 1231). 

9.	There may be circumstances in which a tribunal is right to hold parties to the formal label attached to an application;  but in this field at least the authorities clearly show that tribunals are obliged to adopt as flexible an approach as possible in order to mitigate the injustice that can be caused by these complex and rigid rules.  This is well illustrated by the, in its own language, “tortuous” route which this Tribunal was prepared to take in D & H in order to achieve a just outcome.  I note that Elias J specifically observed in that case - at paragraph 57 (p.1549D):

“… an application for a review under rule 34 is sufficiently made out if grounds can be discerned from the application:  see Sodexho Limited v Gibbons [2005] ICR 1647, paras 32‑33.” 

The point there being considered was not quite the same as that which arises in the present case, but the broad approach adopted by Elias J is in my view equally applicable.  

10.	If the Judge had considered the review application of 7 April 2008 under rule 34 she would in my judgment, subject to the point which I consider at paragraphs 12-18 below, have been obliged to conclude that it had a reasonable prospect of success for the purpose of rule 35 and should accordingly have directed a hearing under rule 36.  Whether one is dealing with a default judgment or with a judgment reached following a hearing at which the respondent was debarred from participation - and thus whether one is proceeding under rule 33 or rule 34 - the essential questions for the consideration of the tribunal are the same, namely those classically identified by Mummery J in Kwik Save Stores Limited v Swain [1997] ICR 49 and endorsed by Burton J in Pendragon PLC v Copus [2005] ICR 671 and in Moroak.  That is expressly recognised by Elias J in D & H: see paragraphs 23‑26 (p. 1543).  It is unnecessary and inappropriate for me to address those considerations in detail here.  It is enough to say that the review application, while it was fairly economically expressed, nevertheless (a) raised an arguable issue as to liability and (b) appeared to show that the Appellant’s failure to serve a response in time was, if not excusable, at least not the result of insouciance or still less any contumelious disregard of the tribunal’s rules or orders.  Once those two points were raised, there was in my judgment enough to require a full hearing.  

11.	I do not of course say that at such a rule 36 hearing the application would necessarily have succeeded.  Certainly the Appellant would have had to put more flesh on the bones of the review application, for example by submitting a witness statement or statements in support of the factual points on which he relied and by submitting a draft response.  (In this regard, I note that Fynmores appeared to be concerned about prejudicing ongoing police investigations.  That was certainly not a sufficient reason for not putting in a response.  The response could, if necessary, have explained the difficulty about giving detailed grounds and confined itself to an outline.  It seems to me unlikely that it would have given rise to any real difficulty on a review application, but if there was indeed a serious problem the Tribunal could have decided how to deal with it, if necessary by an appropriate stay.)  

12.	There is however one serious complication.  It would have been pointless to allow the application for a review to proceed to a full hearing if the Appellant was to remain debarred by rule 9 (whose operation is automatic) from participating in that hearing;  and that would remain the case unless and until it had been permitted to lodge a response out of time.  It was held in Moroak, and confirmed in D & H, that notwithstanding the apparently clear language of rule 4 (4) there must exist a jurisdiction to allow a response out of time even in circumstances where the tribunal has chosen not to issue a default judgment under rule 8.  It was the view of both Burton J and Elias J, with which I agree, that if there were no such jurisdiction there would be a very serious lacuna in the rules liable to give rise to real injustice.  The route devised in those cases as the basis for such a jurisdiction depends on the refusal of the tribunal, pursuant to rule 6, to accept a late response: such a refusal can be reviewed under rule 34 (3) (a), and rule 9 does not debar the respondent from applying for such a review – see ‘exception (b)’.  But that route is, on the face of it, not available in the present case because the Appellant has never attempted to present a response at all.

13.	Mr Godfrey had two answers to that difficulty.  

14.	The first answer was that Fynmores’ letter of 14 March should be treated as a response, albeit a defective one, which had been rejected by the Tribunal in its letter of 25 March.  If that is right, the review application of 7 April could be treated as including also an application for a review of that rejection. 

15.	I was at first unattracted by this submission because the letter of 14 March is on its face not the submission of a response but rather an application for an extension of time in which to present a response.  But on reconsideration the case does seem to me to fall within the ratio of D & H.  In that case also, the respondents had not submitted anything that purported to be a response.  They had merely written a letter in which they had “explained to the Tribunal that [they] had a defence to the allegations … [which] … ought to be considered notwithstanding the failure to submit a response” - see paragraph 8 (p. 1539) - and had made it clear at the hearing that they wished to contest the claim (only as regards remedy, but that is not material for present purposes).  The respondents’ submission was that in those circumstances they should be treated as having made “an application under rule 34 for an extension of time for their response” which the chairman had implicitly rejected by refusing to review the default judgment previously issued as to liability.  That submission was accepted by this Tribunal.  Elias J said (para 56, p. 1549 A-B):

“It is true that no formal response had even been drafted or submitted, but we think that in rejecting the review of the default judgment, the Chairman must be taken to have also rejected an application to permit the late submission of a response.” 

The facts here are different in detail, but the essential situation is the same.  The Appellant had, by Fynmores, made it clear that it believed that it had a defence and that it wanted to put in a response late.  Clearly a formal response would have had to be lodged before the substantive review could proceed;  but it was not regarded in D & H as necessary that such a draft should have existed as at the moment of the refusal under rule 6, and the same must apply here.  

16.	Elias J, as I have already noted, described the route followed in D & H as “tortuous and artificial” but as nevertheless a legitimate means of reaching a just result.  Likewise in the present case it involves some benevolent construction to treat the letter of 14 March as the attempted presentation of a response - though arguably the difficulty is somewhat lessened by the fact that Fynmores at least indicated the nature of the response and explained why they did not wish to go into further detail.  But, as I have already indicated in a different context, I agree with Elias J that it is necessary to adopt a particularly flexible approach to these rules in order to do justice and in the light of the overriding objective.  No doubt the Appellant was at fault in not submitting his response on time: even if the service of the claim form was delayed as a result of the Claimant’s error in specifying the address, the fact remained that the form was received in sufficient time to allow the submission of a response, and the covering letter from the Tribunal clearly indicated the date for doing so.  But in no other area of litigation would a default of that kind automatically preclude a defendant or respondent from any further participation in the substantive determination of a claim.  (The position may be different, as Burton J observed in Moroak, as regards appeals.) 

17.	Mr Godfrey’s second answer derives from Terry Ballard v Stonestreet, a decision of this Tribunal chaired by HHJ McMullen QC  In that case it was held that the respondent, who, as in the present case, was the subject of a debarring order under rule 9, was entitled to a review of a judgment (not a default judgment) against him.  At paragraph 30 of the judgment Judge McMullen addressed the question whether on such a review the respondent would be entitled to be heard, in view of the fact that rule 36 is not mentioned in any of the exceptions under rule 9. 

“It seems to us that if a Respondent applies properly after debarment for a review of the substantive judgment against him, then a Chairman must give full consideration to it and, unless it has no reasonable prospect of success, there must be a review: rule 35(4).  It is a requirement that grounds be given for the review.  ‘In the interests of justice’ is a very wide heading and is likely to include substantive evidence relating to what a party did and what prejudice is suffered.  The purpose of allowing a debarred Respondent to make that application is for it to be allowed to enter back into a review hearing, even though it had not been present at the substantive hearing, and for it to become a party.  It is expressly designated to be a party for the purposes of rule 35.  It cannot be right that, having raised the expectation that he can have a review, he must sit silently by at the hearing while the points he has made are considered and possibly destroyed without his participation.  Thus, in order to give utility to this limited lifting of the bar in the rules, it is necessary to imply into the rule that a party, having made an application which is not refused by the Chairman under rule 35, will proceed to a review and be a full party at that stage.” 

I agree with that passage, which is a further illustration of the creativity needed to get round the deficiencies in the drafting of these rules.  But I am not sure that it advances the argument.  In order to get the rule 9 bar lifted for the purpose of the substantive proceedings, application will have to have been made to lodge a late response, and that application will have to have been refused, in order to trigger the entitlement to a review under rule 34 (1) (a).  Thus the “D & H route” still has to be taken.  

18.	For those reasons the debarment of the Respondent under rule 9 was not a sufficient reason for the Judge, had she considered the application under rule 34, to have refused that application.

19.	It follows that I allow this appeal.  I set aside the order of 17 April and I direct that the Appellant’s application dated 7 April be the subject of a review under rule 36.  I repeat for the avoidance of doubt that that decision carries no implications as to what the outcome of that review should be.  I am not in a position to reach any decision on the application of the Kwik Save factors.  It remains, as I have said, for the Appellant to make his case on the relevant points.  

20.	I will direct under rule 30 (3) (b) that, if it remains practicable to do so having regard to the lapse of time, the Employment Judge should produce written reasons for the judgment of 26 March 2008.  It seems to me that the conduct of the review will be a good deal easier if the parties have an authoritative record of the basis for that decision.  I appreciate however that to prepare such reasons so long after the event is never a welcome task for Employment Judges, and that the administrative arrangements may be such that the original record of the reasons which the judge must have given orally cannot now be retrieved.  If that is so this request will have no application.  

21.	I should make one final point.  Mr Godfrey in his skeleton argument sought to rely on the recent decision of HHJ McMullen QC in Chowles t/a Granary Pine v West (UKEAT/0473/08).  That decision post‑dates the Notice of Appeal both in its original form and as amended.  In that case the claimant in the claim form named the respondent Anthony Chowles as “Anthony Charles”, and in addition made two errors in the address and gave an incomplete postcode.  On the evidence before the tribunal it appeared that the respondent never received notice of the claim form, presumably as a result of those errors, though the employment judge made no explicit finding to that effect.  There was a default judgment which the respondent applied to have reviewed under rule 33.  The application was refused.  An appeal to this Tribunal was allowed.  That would be entirely understandable on the basis that, on the evidence, the respondent had never received the claim form.  But, as I read Judge McMullen’s reasons, he appears to say that the question whether the respondent had received a claim form was not crucial because, in view of the errors to which I have referred, the claim form was a nullity in any event.  Mr Godfrey submitted that the same reasoning must apply in the present case by virtue of the errors which I have set out above.  I would not accept that submission.  If the ratio of Chowles is that any misnomer or error in the address of a respondent as given in the claim form renders that form a nullity, and thus relieves the respondent of any obligation to submit a response even if the claim form in fact comes to his attention, I must respectfully disagree.  Where any such errors are not such as to create any realistic uncertainty as to the identity of the intended respondent, it would be absurd if the sending and receipt of the claim form were nevertheless to be treated as being of no effect.  The position may be different where, as was at least arguably the case in Chowles, the mis-description was such that the recipient might not have appreciated that he was the intended respondent.  In my judgment it is not arguable that that is the case here: the distinction between “Jarrott” and “Jarrett” is wholly insignificant.  But my view on this point does not affect the outcome of the appeal.