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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> EPI Coaches Ltd v Lafferty [2009] UKEAT 0065_09_0704 (7 April 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0065_09_0704.html Cite as: [2009] UKEAT 0065_09_0704, [2009] UKEAT 65_9_704

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APPEARANCES

 

For the Appellant	MR R KOHANZAD (Representative) Peninsula Business Services Ltd Litigation Department Riverside New Bailey Street Manchester M3 5PB
For the Respondent	MR CHRISTOPHER EDWARDS (of Counsel) Instructed by: Messrs McKeowns Solicitors 8 Parkway Porters Wood St Albans Hertfordshire AL3 6PA


 


SUMMARY

PRACTICE AND PROCEDURE: Striking-out/dismissal

Review of striking out orders – principles summarised in Neary v Governing Body of St Albans School [2009] UKEAT/0281/08 (9 January 2009) applied – appeal allowed – application for review and linked matters remitted for re-hearing by a different Employment Judge.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by EPI Coaches Limited ("the Company") against a judgment of the Employment Tribunal (Employment Judge Silverman sitting alone) dated 11 June 2008. The practical effect of this judgment was to hold that the Company remained subject to a striking out order dated 2 April 2008 and was unable to defend a claim brought against it by Mr Brian Lafferty except in one minor respect. Precisely what application the Employment Judge was determining and on what grounds she determined it will be discussed later in this judgment.

The factual background

2. The Company was a coach operator. It was newly formed. It had been granted an operator's licence under the Public Passenger Vehicles Act 1981 only on 12 June 2007. Mr Pilia was its director. Mr Brian Lafferty was appointed by the Company as general manager with effect from 22 October 2007 at a salary of approximately £45,000 per annum. He had great experience in the transport industry, specifically as a transport manager for a coach operator.
3. At the time of Mr Lafferty's appointment the Company was in some difficulty. A public inquiry was about to take place with a view to the revocation of its licence, on the grounds that it was associated with other coach businesses whose licences had been revoked. One of Mr Lafferty's first tasks was to give evidence at that public inquiry, which took place on 26 October 2007 before a Deputy Traffic Commissioner. He said that he would leave "at the first whiff of anything improper", and that the Traffic Commissioner would be the first to know.
4. By letter dated 22 November Mr Lafferty resigned as general manager. In his letter he complained of various aspects of the running of the Company's business, including an inadequate system for ensuring that checks of vehicles were made. He tendered his resignation with effect from 21 December.
5. On 26 November Mr Pilia replied. He stated that he accepted the resignation with immediate effect, so that Mr Lafferty's last working day would be 26 November.
6. Before turning to the Tribunal proceedings with which this appeal is concerned, it is convenient to explain what subsequently happened in respect of the public inquiry. The decision of the Deputy Traffic Commissioner was issued on 20 December 2007. It was adverse to the Company. It was ordered that the Company's licence be revoked with effect from the end of February 2008. But there was an appeal from the Deputy Traffic Commissioner to the Transport Tribunal. The revocation of the licence was suspended pending appeal. The hearing of the appeal was on 9 April 2007. The hearing did not require the giving of evidence again; it was conducted on the basis of documents, a transcript of the public inquiry and the decision letter of the Deputy Traffic Commissioner. The Company was successful in the appeal. Undertakings were required of the Company in certain respects but its licence was not revoked. The reasons of the Transport Tribunal are dated 29 April 2008.

The Tribunal proceedings

7. Mr Lafferty presented a claim to the Employment Tribunal on 18 February 2008. He claimed payment for his notice period and for his untaken leave. In addition he claimed that he had been automatically unfairly dismissed.
8. Generally speaking, before an employee can claim unfair dismissal he must have been employed for a year: see section 108 of the Employment Rights Act 1996. But the qualifying period of a year does not apply in certain circumstances. Mr Lafferty sought to bring himself within two of these exceptions, by claiming that his dismissal was automatically unfair contrary to section 100 or section 103A of the Employment Rights Act 1996.
9. It is relevant to note how Mr Lafferty's case was put in his claim form. It was said that his resignation letter was a qualifying disclosure for the purposes of the 1996 Act, and that his resignation letter brought to his employer's attention circumstances which were potentially harmful to health and safety. It was then said that by reason of the contents of the resignation letter the Company dismissed him during the notice period, and that it was this dismissal which was automatically unfair because the principal reason was the disclosure in the resignation letter. I would observe in passing that Mr Lafferty's claim in this respect could not be described as straightforward; and if successful there would be an argument that his compensation would be limited to the balance of his notice period.
10. The Company, acting by Mr Pilia, filed a response on 17 March 2008. Its response was, however, very limited. The Company said that it intended to resist the claim. It said that Mr Lafferty had only worked for one month and was not entitled to any notice period as he was still under probation. It did not, however answer in detail or engage with the case which Mr Lafferty had put in his claim form.
11. On 2 April an Employment Judge made an order on the papers. The order required the Company to provide by no later than 4pm on 14 April a full response to the claims being made by Mr Lafferty in respect of unlawful deduction of wages, holiday pay and automatic unfair dismissal. This provision of the order was expressed to be made in accordance with rule 10(2)(b) of the Employment Tribunal Rules 2004.
12. The Order contained the following further provision.

"The Tribunal further orders in accordance with rule 13(3) [sic] that unless the Respondent complies with the above order by the date stated in it then the response shall be struck out on that date save insofar as it relates to the claim for notice pay without further consideration of the proceedings or the need to give further notice to the Respondent or to hold a pre-hearing review or hearing."

13. The Company did not comply with this order. Non-compliance having been brought to the notice of an Employment Judge, the following further order was made on 18 April 2008 –

"In exercise of powers conferred upon me under Rule 13(2) of the Employment Tribunal Rules of Procedure 2004, I ordered that the claim be struck out on the ground that the Respondent was in breach of the unless order made on 2^nd April and sent to the parties on 4^th April 2008"

14. The reference to striking out the claim is of course a mistake. It was intended to strike out the response.
15. The Company now instructed an employment consultant. The employment consultant wrote on the Company's behalf to the Tribunal on 30^th April 2008. This letter reads as follows.

"We write further to our previous confirmation that we have been appointed representatives of the above Respondent s, to apply for a Review of the Tribunal judgment dated 18^th April 2008, striking-out such part of our client's response as related to unlawful deductions from wages, holiday pay and automatic unfair dismissal under sections 100 and 103A of the Employment Rights Act 1996. The grounds for such Application are as detailed below.

Our client certainly is of course in the business of Coach Travel and was the holder of (as pointed out in the Claimant's ET1) of PSV Operators Licence until December 2007, when it was revoked with effect from the 29^th February 2008.

Our Client instruct us that since the revocation of the Licence they have been putting all their efforts into our appeal to have their License restored, and at the time of writing their Appeal is with the Traffic Commissioner for a decision.

Our Client would comment that the Claimant's swift resignation had thrown the administration of their business into complete disarray, with a result that many matters had been overlooked, and regrettably in this particular case the necessity to deal correctively and expeditiously with peremptory 'unless Orders' from the Tribunal had not been dealt with.

Our client should clearly have taken legal advice earlier than they did on the implications of Tribunal claims for automatic unfair dismissal such as have been brought by the Claimant in this case.

The Respondents naively thought that the Claimant's resignation sop soon after he started in the post could not possibly found an unfair dismissal claim and hence only partially completed their ET3.

Our Clients do strongly take the view that the Claimant's resignation was premature and that no fundamental breach of contract justifying resignation for anticipatory breach had at that time occurred. We therefore strongly submit that there is clearly an arguable case for consideration by the Tribunal on this point, and that the Respondents, despite their clear laxity in dealing with the original Tribunal Order, should in the interests of justice be permitted to present their case on this issue.

Accordingly on the above facts the Respondents' application is under Rule 34 (1)(b) and (3)(e) that a Review should be granted in the interests of justice, and that the detailed response to the claims for unlawful deduction from wages, holiday pay, and automatic unfair dismissal under sections 100 and 103 A of the ERA 1996 required under the Unless Order of the Tribunal dated 2 April 2008 should be omitted out of time.

A proposed draft of such detailed Response is attached to this Application, and we confirm that a copy of the Application has been supplied to the Claimant's representative under Rule 11 (4) of the 2004 Regulations."

16. The word "omitted" in the penultimate paragraph of the letter is of course an obvious misprint for "permitted". There was therefore a written application for permission to put in the detailed response out of time.
17. Attached to the letter was a document entitled "Details of Respondent's Additional Grounds for Resistance under paragraph 5.2 of ET3". This document set out the Company's case, in particular on the question of automatic unfair dismissal.
18. By this time the Tribunal had arranged a hearing of Mr Lafferty's claim for 9 May. On 9 May both parties were represented. The hearing could not be concluded on that day and was adjourned part heard until 9 June.

The Tribunal's hearing and reasons

19. Although the letter dated 30 April was in terms an application for a review of the order dated 18 April, it was argued on behalf of Mr Lafferty at the hearing that the striking out took automatic effect by virtue of the order dated 2 April. This, as we shall see later in this judgment, was correct and was accepted by the Employment Judge. It was not necessarily accepted by the Company's representative, who believed that the letter dated 30 April was wide enough to encompass any review.
20. Be that as it may, I am told today by both parties, and accept, that the Employment Judge was asked to consider the matter in the alternative as an application, albeit out of time, to review the order dated 2 April. She was addressed on this basis and it was expected that she would deal with the case in the alternative on this basis. It was argued that it was not just and equitable to extend time.
21. The Tribunal's judgment following the adjourned hearing on 9 June 2008 provides as follows.

"1 The Tribunal's judgement dated 18 April 2008 is corrected in that the word 'Claim' in the second line of the judgment should be deleted and the word 'Response' substituted therefore.

2 The Respondent's application for a review of the Tribunal judgement dated 18 April 2008 is refused.

3 The Respondent having been subject of a strike out order made on 4 April 2008 was unable to defend the Claimant's claim, except as to the non-payment of notice pay, this latter claim being conceded by the Respondent at the hearing on 9 May 2008."

22. The Tribunal's judgment went on to record that Mr Lafferty was automatically unfairly dismissed and to order the Respondent to pay to him £42,363 by way of compensation for unfair dismissal. There were also awards in respect of damages for breach of contract and costs.
23. The Tribunal's reasons were provided on 14 July 2008. On the question of review, they provide as follows.

"1. These reasons are issued following a request from the Respondent dated 24 June 2008.

2. The Respondent's application for a review of the Tribunal judgment dated 18 April 2008 is misconceived. That judgment merely confirms a strike out order promulgated to the parties on 4 April 2008. Setting aside that judgment would not in itself set aside the strike out order which had already taken effect as from 4 April 23008.

3. Even if the Tribunal is wrong on the above point, the Tribunal rejects the Respondent's argument that the Tribunal should allow the review on just and equitable grounds.

4 The only actual reason given for the Respondent's failure to deal with the Tribunal order (which led to the strike out) was that the Respondent had failed to open the letter sent to it by the Tribunal. This is wholly inadequate ground on which to allow review.

5. The Tribunal rejects the Respondent's argument that no prejudice would be caused to the Claimant by allowing the review since the Claimant has already prepared and delivered its witness statements to the Respondent but has received no evidence or details from the Respondent of the nature of its own case.

6. No application has been made by the Respondent to amend their Response.

7. the letter written by the Respondent's legal advisors to the Tribunal making application for a review contains misleading information by suggesting that the Respondent's licence had been revoked which was factually not the case."

Submissions

24. On behalf of the Company, Mr Kohanzad makes the following submissions.
25. Firstly, he submits that the Employment Judge was wrong to say that the application for a review of the Tribunal judgment dated 18 April was misconceived. He submits that the Employment Judge had a power to review the decision to strike out: he cites Uyanwa-Odu v Schools Offices Services and another (UKEAT/0294/05).
26. Secondly, he submits that the Employment Judge did not deal adequately or at all with the application to review the order dated 2 April 2008. Although there is reference to "just and equitable grounds", he submits that the Employment Judge's reasons show that she has not had any overall regard to what is just and equitable, and in particular has not applied, in the context of an application for relief against sanctions, the criteria set out in CPR 3.9(1). The requirement to do so was already well established: Maresca v Motor Insurance Repair Research Centre [2004] 4 All ER 254.
27. In particular he submits that the Employment Judge did not consider at all the effect which failure to comply would have on the Company. He points out the unusual nature of Mr Lafferty's case; even if it is established that the resignation of Mr Lafferty was converted into a dismissal when he was not required to work his notice, it would still be necessary to show that this was for a prohibited reason, and even then it would appear that any effect of dismissal was limited to the notice period. Effectively Mr Lafferty has succeeded on a case of constructive dismissal, which would have been hotly contested on the facts, and in respect of which he did not have the necessary qualifying period.
28. Thirdly, he submits that the Tribunal was wrong to say that the only reason given was failure to open a letter sent by the Tribunal. The context was given; the Company was involved in a hearing of great importance to it before the Transport Tribunal.
29. Fourthly, he submits that the Tribunal was wrong to take into account as a reason that no application had been made by the Company to amend its response. The order dated 2 April had not required amendment of the response. It had required "a full response". This had been attached to the letter dated 30 April.
30. It is not a specific ground of appeal, but I should make clear that he does not accept that the letter dated 30 April was misleading in the way the Tribunal alleged. As we have seen there was an order revoking the licence of the Company, and there was an appeal to the Transport Tribunal. As the letter dated 30 April makes clear, the writer was not aware of the result.
31. On behalf of Mr Lafferty, Mr Edwards makes the following submissions.
32. Firstly he submits that Judge Silverman addressed the question whether it was just and equitable to extend time for reviewing the order dated 2 April, and found that it was not. No error of law was involved in this conclusion. A broad approach was required: see Robertson v Bexley Community Centre [2003] IRLR 434. The criteria under CPR rule 3.9 would come into play only if a just and equitable extension were granted.
33. Secondly, he submits that Judge Silverman's reasons are adequate and proper reasons for the exercise of her discretion.
34. Thirdly, he submits that it was a matter of considerable importance that no written evidence was provided by the Company at the hearing. He submits that there was, in the absence of evidence, only one conclusion to which the Employment Judge could come. He refers to CPR 3.9(2), which requires evidence in support of an application for relief against a sanction in the civil courts.
35. Fourthly, he submits that Judge Silverman attached great weight to the fact that a hearing before the Transport Tribunal had been conducted dishonestly. His point, in essence, was that the hearing before the Transport Tribunal had been conducted as if Mr Lafferty was still employed by the Company.
36. On the question of lack of evidence, Mr Kohanzad points out that the Employment Judge had a bundle which included the decisions of the Traffic Commissioner and the Transport Tribunal. She had the letter dated 30 April and expressed the view that the reason contained in it was a bad reason for a review, regardless of the merits. He submits that written evidence would have made no difference.

Striking out – the law

37. At this point in the judgment it is convenient to set out certain propositions concerning the Tribunal's powers to strike out responses and reinstate them. These propositions ultimately derive from the Employment Tribunal Rules 2004 (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (as amended).
38. First, the Tribunal has a general power to manage proceedings, for which purpose it may issue orders of its own as a result of the Employment Judge considering the papers before him in the absence of the parties: rule 10(1). For example, there may be an order requiring a party to provide additional information: rule 10(2)(a). This was the power which the Employment Judge exercised in issuing the order on 2 April for the Company to provide a full response.
39. Second, the Tribunal has a power to make an order providing that unless the order is complied with by a certain date the claim or response may be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or hearing: rule 13(2). This was the power which the Employment Judge exercised in adding what is commonly known as an "unless order" to the order dated 2 April. The order wrongly referred to rule 13(3).
40. Third, such an order has the effect of striking out the claim or response automatically if it is not complied with. No further order is necessary.
41. Fourth, although the Tribunal has power to make an "unless order" of its own motion under rule 13(2), there are otherwise strict procedural provisions relating to the making of striking out orders. They may only be made at a hearing or a pre-hearing review: rule 13(1). Moreover the party against whom such an order is to be considered must be given notice of it in advance or at least an opportunity to give reasons orally as to why the order should not be made: rule 19(1). It follows that the order made on 18 April 2008 was inappropriate in two respects. Firstly, it was irregular, having been made without a hearing and without notice to the Company. It was liable to be set aside. Secondly, it was unnecessary, the response having been struck out by the effect of the "unless order" dated 2 April 2008.
42. Fifth, the order dated 2 April was for the purposes of the 2004 Rules a conditional judgment. When it took effect on 14 April it became for the purposes of the 2004 Rules a judgment which can be reviewed under rules 34-36 of the 2004 Rules if the interests of justice require a review. Further and in any event, the Tribunal had a power to extend time for compliance with the order: rule 10(2)(e) and (n).
43. Sixth, the order dated 18 April, although irregular, was a judgment and was therefore capable of review under the same provisions.
44. Seventh, an application under rule 34 to have a decision reviewed must be made within 14 days of the date on which the decision was sent to the parties, but the 14 day time limit may be extended by an Employment Judge if he considers that it is just and equitable to do so: rule 35(1). The application must be in writing and must identify which ground or grounds are relied on, the grounds being set out in rule 34(3): rule 35(2).
45. Eighth, on a review of an order striking out a claim or response for non-compliance, the Employment Judge must apply the overriding objective set out in reg 3 of the 2004 Regulations. For this purpose the Employment Judge should consider and weigh the factors set out in rule 3.9(1) of the Civil Procedure Rules. His reasoning should demonstrate that he has done so, although it is not necessary slavishly to mention each factor in turn, and certainly unnecessary to mention factors which are of no relevance to the case in hand.
46. Ninth, the requirement in rule 3.9(1) is to consider all the circumstances of the case including (a) the interests of the administration of justice, (b) whether the application for relief has been made promptly, (c) whether the failure to comply was intentional, (d) whether there is a good explanation for the failure, (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant protocol, (f) whether the failure to comply was caused by the party or his legal representative, (g) whether the trial date or likely trial date can still be met if relief is granted, (h) the effect which the failure to comply had on each party, and (i) the effect which the granting of relief would have on each party.
47. I have set out these propositions without reference to the cases in the Court of Appeal and in the Employment Appeal Tribunal which establish them. These cases have recently been gathered together and expounded in Neary v Governing Body of St Alban's Girls' School (2009) UKEAT/0281/08 (9 January 2009)(His Honour Judge Peter Clark). This is a valuable and illuminating guide to many of the issues which arise in the context of automatic striking out under unless orders. I hope it will reach a wide circulation.
48. I would add this. I have not traced the history by which the law has reached its present state. It has done so gradually over the last few years. Tribunals and practitioners have not always appreciated the position correctly. In this case, for example, it is plain that the judgment dated 18 April was inappropriate, but this will have been less clear last year, not least to the Employment Judge who made it and the employment consultant engaged by the Company.

Conclusions

49. I begin with the Order dated 18 April. This order was, for reasons I have explained, irregular and misconceived. It should never have been made. If anything was required at all it was to make clear in a letter to the parties the view of the Tribunal that the Response stood struck out by virtue of non compliance with the Order dated 2 April. Such an order would have drawn attention to the Order which really mattered – the Order dated 2 April.
50. There are two vices in the Order dated 18 April. The first is that it is a striking out order in itself. It may be irregular, but it stands in the way of restoration of the Company's response until it is set aside. Far from setting it aside, the Employment Judge amended it as though it ought to have some effect. This was quite wrong. She ought to have reviewed the Order dated 18 April and set it aside.
51. The second vice of the Order is that, while it existed, it was hardly surprising that the application for review should be made in respect of it. No doubt an astute lawyer would have appreciated that the application should also have been made in respect of the Order dated 2 April, but it is altogether understandable that the application on 30 April should have focussed on the later order.
52. I have already said that I accept that, as both parties informed me today, the Employment Judge was asked in the alternative to consider an application to review the 2 April judgment out of time, Mr Lafferty's representative not requiring a separate written application for this purpose. If I may respectfully say so, this was plainly a wise course to take, and I would have expected any Employment Judge, conscious of the need to do justice, to ensure that the matter was heard on this basis. It was the Tribunal's erroneous order which led to a focus on 18 April. It is entirely plain that the Company wished to apply for its response to be reinstated, whichever order had the effect of imposing the strike-out. The wise course was to clarify this, ensure that a written application was made if it was required, and deal with it in accordance with established principles.
53. I would add that there was, in any event, an application in the letter dated 30 April for the Response to be accepted out of time; and this was effectively an application to extend time for filing the Response, which would also have the effect of relieving the Company from the sanction of striking out, and to which the same principles would apply.
54. At some point between 9 May and the date when her reasons were given I think the Employment Judge must have lost sight of the precise question she was being asked to decide. With respect to Mr Edwards, I do not consider that the Employment Judge in her reasons was addressing an application to extend time for applying for a review of the order dated 2 April. To my mind she was giving alternative reasons for rejecting an application for review of the order dated 18 April. This is apparent both from paragraph 3 of the reasons, which expressly says what the Employment Judge was deciding, and from the subsequent paragraphs, which are not directed to the question whether time should be extended, but merely to the overall question whether a review should be granted.
55. At all events, I have come to the conclusion that the reasoning in those paragraphs is flawed and inadequate, whether it is considered as reasoning for refusing a review (as I think) or reasoning for refusing to extend time (as Mr Edwards suggests).
56. Firstly, the reasoning does not address or balance the factors set out in CPR 3.9(1), nor is it the kind of balanced approach which would be required for a consideration whether it was just and equitable to extend time. If, as I believe, the Judge was considering whether it was in the interests of justice for there to be a review, it was essential for her to give rounded consideration to the factors set out in CPR 3.9(1). Nothing in the Employment Judge's reasoning persuades me that she undertook this task or understood herself to be undertaking it.
57. If, as Mr Edwards suggests, she was giving reasons for refusing to countenance a short extension of time to apply for a review, her reasons are inapposite to such a question if considered separately. Speaking for myself, however, I doubt whether it is helpful to consider the question whether it is just and equitable to extend time for applying for a review in isolation. Where, as here, the application for relief from a sanction is made within a short time of the party appreciating that it has been made subject to a sanction, the merits of granting an extension of time for applying are so closely bound up with the merits of the application for relief from sanction that it is unhelpful to consider them in isolation from each other.
58. Secondly, while it may be factually true that there had been no application to amend the Response, the Order dated 2 April had not required amendment. It is therefore nothing to the point to say that there had been no application to amend the Response. The Employment Judge had the proposed detailed response attached to the letter dated 30 April. Her reasons do not disclose whether she attached any weight to the existence of the detailed response.
59. Thirdly, while it may be true that the reason given by the Company was not a good one, the Employment Judge does not put the Company's explanation into context or evaluate it against other relevant factors.
60. Finally, it is in my judgment relevant to consider the merits of the claim when considering whether to grant relief from a sanction. The merits are not irrelevant to this exercise. I have already explained that the claim put forward by Mr Lafferty was by no means straightforward. There is no indication that the Employment Judge considered the merits at all.
61. In his submissions Mr Edwards placed great weight on the fact that no witness statement was placed before the Tribunal. There is no indication in the Employment Judge's reasoning that she decided the case on the basis that there was no evidence before her on which she could act. It seems to me more probable that she assumed that the reason for non-compliance with the striking out order was not a good one.
62. Although the criteria in CPR 3.9(1) are relevant criteria for the Tribunal to consider, there is no equivalent to CPR 3.9(2) in the Employment Rules 2004 and therefore no statutory requirement that an application for a review must be supported by a witness statement. Whether a Tribunal will accept what is said in a letter by way of excuse is ultimately a matter for the Tribunal. If there is an issue as to the excuse given the Tribunal has ample power to give a direction for service of a witness statement or to hear oral evidence on the question.
63. Mr Edwards also placed weight on the finding in paragraph 7 of the Employment Judge's reasons to the effect that the letter dated 30 April was misleading, "suggesting that the Respondent's licence had been revoked when it was not the case". It was, however, in fact the case that the licence had been revoked and that the Company had appealed against the revocation, which was the thrust of what the letter said. While it is true that the revocation had been suspended, the order for revocation had been made. The Employment Judge's reason in paragraph 7, even if it is correct, is not a substitute for a properly reasoned decision on the question whether a review should be granted.
64. For these reasons I consider that the appeal should be allowed and the judgment dated 11 June 2008 will be set aside.
65. The judgment dated 18 April will also be set aside. The proceedings are remitted to the Employment Tribunal for consideration by a different Employment Judge of the question whether the Order dated 2 April should be reviewed, including the linked questions whether time should be extended for applying for a review, and whether time should be extended for service of the detailed response. The Employment Judge may give directions for the filing of evidence if so advised; and the parties may in any event file witness statements.
66. I would finally refer, by way of postscript, to one further feature of the reasons dated 14 July. Although there was no default judgment, there are no findings of fact or reasons relating to the alleged automatically unfair dismissal. It is simply recorded that the claims are "unchallenged". It does not follow that they are proved, still less that the quantum relating to any proven claim involves Mr Lafferty's full loss of earnings. I make it clear that I do not wish to pre-judge in any way whether Mr Lafferty's claim is a good one or whether quantum has been assessed on the correct basis. But I observe that if the application for relief from sanction is unsuccessful, and there is again to be an "unchallenged" assessment of liability and quantum, the reasons provided for the assessment should make proper findings of fact.