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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Osborne v. Valve (Engineering) Services Ltd G T Webb [2000] UKEAT 393_00_2411 (24 November 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/393_00_2411.html Cite as: [2000] UKEAT 393_00_2411, [2000] UKEAT 393__2411

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APPEARANCES

 

For the Appellant	MR DALE MARTIN (of Counsel) Instructed by: Mr C Killin Messrs Fishers Solicitors 6-8 Kilwardby Street Ashby-de- la Zouch Leicestershire LE65 2FU
For the Respondents	MR RICHARD SEABROOK (of Counsel) Instructed By: Messrs Browne Jacobson Solicitors 44 Castle Gate Nottingham NG1 7BJ


 


MR JUSTICE CHARLES:

1. The parties to this appeal are Mrs S Osborne (the Appellant) and Valve (Engineering) Services Ltd (the Respondent company). The subject matter of the appeal is Mrs Osborne's breach of contact claim against the Respondent company.
2. The appeal is against two decisions of a Chairman (sitting alone) of an Employment Tribunal sitting at Leicester. The first decision was made on 29 February 2000. The second decision is the refusal by the Chairman on 21 March 2000 to review the first decision.
3. The Order dated 29 February 2000 is in the following terms:

"The applicant's claim for breach of contract in respect of a profit share shall be dismissed on withdrawal by the applicant."

4. The background to that Order appears from paragraph 1 of the Reasons given by the Chairman. Those Reasons are also dated 29 February 2000 and they were received by the parties shortly after that date. Paragraph 1 is in the following terms:

"The applicant had decided to withdraw that part of the breach of contract claim, which related to her allegation of a failure to pay her the profit share to which she was entitled. The reason being that the claim is likely to exceed the Tribunal's jurisdictional limit. The respondent objected to that application on the basis that the applicant was represented and should have considered the issue of jurisdiction before issuing in the Tribunal. I take the view that it is always open to an applicant to decide whether to proceed or not with claims that have been submitted and, if the applicant decides that she does not wish to pursue a particular part of her claim, that is a matter for her. Accordingly I am satisfied that she is entitled to withdraw that part of her claim and I dismiss that part of the application as a result. …"

5. The remainder of the hearing on 29 February 2000 related to a separate matter concerning the production of a tape recording.
6. It is apparent from the order made on 29 February 2000 that by her Originating Application to the Employment Tribunal Mrs Osborne brought a claim for breach of contract and other claims. The other claims are for unfair dismissal and sex discrimination. Mrs Osborne has also brought a claim of sex discrimination against the Managing Director of the Respondent company, Mr G.T. Webb. The claims for unfair dismissal and sex discrimination were not before us.
7. The breach of contract claim relates to an alleged entitlement to a share of profits. Mrs Osborne's position is that this claim far exceeds the £25,000 limit on the jurisdiction of the Employment Tribunal for a breach of contract claim (see Article 10 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994).
8. It was pointed out to us during the hearing of this appeal by the Respondent company that in a letter dated 22 October 1999 the Solicitors acting for Mrs Osborne had alleged that the amount of her breach of contract claim was of the order of £200,000 and therefore that Mrs Osborne and her advisers were well aware that this claim was over the jurisdictional limit of the Employment Tribunal when they included it within Mrs Osborne's Originating Application which is dated 8 November 1999.
9. As we understand it this point formed part of the Respondent company's argument in opposition to Mrs Osborne's application to withdraw her breach of contract claim. That argument was rejected by the Chairman of the Employment Tribunal.
10. The Respondent company has not appealed against the decision dated 29 February 2000. However, before us the Respondent company sought to rely on this letter in support of arguments that the interests of justice did not require a review of the Order dated 29 February 2000 and that time should not be extended in respect of Mrs Osborne's application for a review of that Order.
11. On 17 March 2000 Mrs Osborne through her Solicitors made an application for a review of the Order dated 29 February 2000. That application was in the following terms:

"We would like to apply for a review of the Decision of Mr Threlfell sitting alone on 29^th February 2000 in relation only to the dismissal of the breach of contract claim on withdrawal. The ground for the application is that it would be in the interests of justice to permit the review.

At that hearing, the Applicant sought to withdraw the breach of contract claim on the basis that the claim, if successful, would be worth in excess of £200,000. The jurisdiction of the Employment Tribunal would permit an award not higher than £25,000.00. On that ground, the Applicant sought to withdraw her claim. The Respondent sought to oppose the Application. The Chairman said that it was a matter for the Applicant and that it was open to her to seek dismissal so that she could pursue proceedings in another Court. Paragraph 1 of the Decision records the result.

We were yesterday informed by Counsel that he had just discovered that a dismissal upon withdrawal is an adjudication on the merits of the decision such that a subsequent action as envisaged may be res judicata. This was a point not known to the Applicant or her advisers at the hearing. It was a point not known by the Chairman who expressed the view that the Applicant was open to do as was indicated. It is further assumed that given the Respondent's opposition to the Applicant's application, it was also a matter in relation to which they were in ignorance.

In the circumstances, we wish to apply for a review of the Decision on the grounds that it would be in the interests of justice to do so. It would clearly be a windfall benefit to the Respondent if the Applicant succeeds in her case to escape possibly hundreds of thousands of pounds of liability in respect of a point which was not known to all present at the hearing of the 29^th February 2000, where even then the point was a side issue to the main matter determined by the Chairman.

There is clear authority that a review is appropriate in these circumstances: see Harber v North London Polytechnic [1990] IRLR 198 (shared mistake of law). We would therefore apply for an order that the application be reinstated but stayed until further order.

We should further add that in so far as hearing the review is concerned, if the Respondent wishes to be heard at a full hearing, that we would request that the Application be heard prior to the resumption of the merits hearing of the unfair dismissal and sex discrimination claims first heard on 13^th and 14^th March 2000 and due to be concluded on 10^th to 12^th May 2000. The reason for this is that should the Review be unsuccessful, the Applicant may have to be represented by different Counsel and/or Solicitors, given that a conflict of interest may arise. This is because one of the terms of her contract that she alleges gives her the right to treat herself as unfairly dismissed (her right to a ten per cent profit share in the company) is the same term said to base the breach of contract claim sought to be litigated in a later action if she is successful in her case before the tribunal. This would cause additional injustice to the Applicant who is currently in the middle of a very detailed five day trial."

12. The Chairman refused that application for a review without a further hearing in the following terms:

"REFUSAL OF APPLICATION FOR REVIEW

I refuse the application for review by the applicant on the basis that it has no reasonable prospect of success under the power in rule 11(5).

REASONS

1 The applicant, who was represented by solicitors, wrote to the tribunal on 21 January 2000 seeking an amendment to her claims by withdrawing the part relating to breach of contract in order to pursue that claim through the County Court. The respondent by letter of 16 February 2000 confirmed its opposition to such an amendment. Accordingly the application to amend came before me with another application on 29 February.

2 At the hearing the respondent objected, but I accepted that this was a matter for the applicant. The applicant was represented by counsel. This is a completely different situation from Harber v North London Polytechnic, where the issue was raised by the chairman, the applicant was not legally represented and there was no adequate time or facility for a considered view. The interests of justice would not be served by allowing the applicant to change her position again.

3 In any event in my opinion the applicant is not estopped from bringing a breach of contract claim in the County Court merely as a result of the withdrawal of her claim in this tribunal. The whole reason for the principles of res judica and cause of action or issue estoppel is to prevent duplication of proceedings. There is no duplication here, because the purpose of the withdrawal was to take proceedings that would not be subject to the limit of £25,000. As there is no mechanism to transfer proceedings from this tribunal to another court, a withdrawal is the only way that alternative proceedings can commence without amounting to an abuse of process. Unlike the decision in Staffordshire County Council v Barber, the applicant did not decline to proceed on the merits of the case as she saw it, but to bring a greater claim. No one could be misled as to her intention. This was a substitution of and not a duplication of a cause of action."

This decision was sent to the parties on 17 March 2000. This decision and the reasons for it make no reference to the fact that the application for review was out of time. Indeed in exercising his power under Rule 11(5) one would not expect the Chairman to do so.

The issues that arise on this appeal

13. Firstly, we have to consider whether the Chairman erred in law in making the Order dated 29 February 2000. Put another way, we have to consider whether the Chairman erred in law when he dismissed the breach of contract claim.
14. If we conclude that the Chairman did so err we then have to consider whether we should remit to an Employment Tribunal or deal with the matter ourselves.
15. Strictly the issues raised and argued concerning the review and its refusal only arise if Mrs Osborne fails on her appeal against the Order made on 29 February 2000.
16. However, we shall consider the arguments put in respect of the review because:

(a) in our judgment it was appropriate for Mrs Osborne to seek such a review, and

(b) those arguments were dealt with in full before us.

17. If we accept that in refusing the review the Chairman erred in law we again have to consider whether we should remit or deal with the review ourselves. Any such remission would be to a full tribunal (see Rules 11(6) and 13(8)).
18. In our judgment it was correctly accepted by Counsel for the Respondent company that the correct approach to the issues relating to the review was:

(a) firstly to consider whether or not in refusing the review for the reasons he gave the Chairman erred in law, and if we conclude that he did, then

(b) to consider whether Mrs Osborne should be given an extension of time to bring her review firstly in the context of whether we should remit and if we decide not to remit but to deal with the review ourselves as a free-standing item.

Relevant Rules and Statutory Provisions

19. The rules are contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. For present purposes the most relevant rules are as follows.

"13 Miscellaneous powers

(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may -

(a) if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings;

…

11 Review of tribunal's decision

(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -

(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;

(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 the time of the hearing; or

(e) the interests of justice require such a review.

(2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision.

(3) A tribunal may only review a decision of its own motion if, within the period beginning with the date of the hearing and ending with the fourteenth day after the date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review.

(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.

(6) If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case, or -

(a) where it is not practicable for it to be heard by that tribunal, or

(b) where the decision was made by a chairman acting alone under rule 13(8),

by a tribunal appointed by either the President or a Regional Chairman.

(7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman's hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal."

…

15 Extension of time

(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired.

(2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application.

(3) The Secretary shall give notice to each of the parties of any extension of time granted under this rule."

20. Section 35 of the Employment Tribunals Act 1996 provides as follows:

"35 Powers of Appeal Tribunal

(1) For the purpose of disposing of an appeal, the Appeal Tribunal may –

(a) exercise any of the powers of the body or officer from whom the appeal was brought, or

(b) remit the case to that body or officer

(2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."

Some additional facts

21. The Chairman has indicated by letter dated 1 June 2000 that in his view the notes taken by Mrs Osborne's Solicitors of the hearing on 29 February 2000 are a fair summary. These notes together with the written reasons given by the Chairman on 29 February 2000 show, and indeed it was common ground before us that:

(a) the application made by Counsel for Mrs Osborne was to withdraw her claim for breach of contract based on her allegation of a failure to pay her a profit share,

(b) Counsel for Mrs Osborne made it clear that the reason why such application was being made was that Mrs Osborne maintained that the claim exceeded the £25,000 jurisdictional limit of the Employment Tribunal and both the Chairman and the Respondent company were aware that this was the reason for the application to withdraw,

(c) it follows that the Chairman and the Respondent company were aware that the intention of Mrs Osborne and her advisers was to issue new proceedings making the breach of contract claim in, as we understand it, the High Court,

(d) Counsel for Mrs Osborne did not invite the Chairman to dismiss the breach of contract claim,

(e) there was no argument or discussion as to whether the breach of contract claim should be dismissed,

(f) accordingly the Chairman made his order dismissing the breach of contract claim without hearing, or inviting, any argument,

(g) at the hearing on 29 February 2000 Mrs Osborne, the Respondent company and their respective advisers were not aware that the effect of an order dismissing the breach of contract claim was, or might be, that Mrs Osborne could no longer pursue it,

(h) the common understanding of Mrs Osborne, the Respondent company and their respective advisers at the end of the hearing on 29 February 2000 was that Mrs Osborne would be issuing and pursuing her breach of contract claim by way of new proceedings which would be hotly disputed by the Respondent company, and

(i) the first occasion when it was appreciated by the parties, or their respective advisers, that the dismissal of Mrs Osborne's breach of contract claim had, or might have, the effect that she could no longer pursue that claim was, as is set out in the letter seeking a review, when Counsel for Mrs Osborne discovered this on 16 March 2000.

22. We add that (as appears from paragraph 1 of the Chairman's Reasons for refusing a review) issue was joined between the parties on the question whether or not Mrs Osborne could amend by withdrawing her breach of contract claim based on an alleged non-payment of a profit share in correspondence exchanged in January and February 2000. We were told during the course of the hearing that the response of the Employment Tribunal to that correspondence had been that this issue would be dealt with as a preliminary issue at the start of the full hearing and the reason it was dealt with earlier was because a further preliminary issue relating to the disclosure of a tape recording was raised. The main issue for the parties on 29 February related to disclosure of that tape recording.

The effect of an order dismissing the breach of contract claim

23. At paragraph T[632] of Harvey it is stated as follows:

It is to be noted that the doctrine of res judicata or cause of action estoppel will apply to an order dismissing proceedings on withdrawal, so that the order will operate as a bar to any future proceedings being brought on the same subject matter (Barber v Staffordshire County Council [1996] 1 All ER 748, [1996] IRLR 209 CA)

It was the discovery of this proposition based on this decision of the Court of Appeal that caused the advisers of Mrs Osborne to seek a review of the decision dismissing the breach of contract claim on withdrawal.

24. As appears from his reasons for refusing a review the Chairman of the Employment Tribunal expresses the view that the Barber case would not apply in this situation (i.e. where the purpose of the withdrawal is to enable proceedings not caught by the jurisdictional limit to be pursued). We see some force in the argument put forward by the Chairman and it seems to us that now it might be supported by arguments based on the Human Rights Act 1998 and Article 6. However in our judgment it is unnecessary and inappropriate for us to decide this question because:

(A) In our judgment it is at least arguable that on the basis of the Barber case that the order in this case dismissing the breach of contract claim on withdrawal had the effect that it could no longer be pursued in any court and that it is likely that any respondent in the position of the Respondent company who was aware of the Barber case would take that point. Indeed the Respondent company have indicated it will take the point if it is successful on this appeal, and

(B) the obvious way to avoid litigation on the effect of ordering dismissal on withdrawal is not to make an order dismissing the claim.

25. Further in our judgment the desirability of avoiding arguments based on the Barber case that a dismissal of the breach of contract claim on its withdrawal would preclude Mrs Osborne from pursuing it elsewhere, mean that:

(a) any lawyer representing Mrs Osborne who was aware of the Barber case or the proposition in Harvey cited above would have made submissions to the Chairman that he should not dismiss the claim, and

(b) any Chairman who was of the view expressed by this Chairman in paragraph 3 of his reasons for refusing a review would and ought to have decided as an exercise of judicial discretion not to dismiss the breach of contract claim.

As to point (b) it seems to us inevitable that:

(i) if a Chairman concludes (as this one did and any other Chairman who allowed Mrs Osborne to withdraw or not pursue the breach of contract claim before the Employment Tribunal would) that there was no abuse and no prejudice to the Respondent company that prevented Mrs Osborne from withdrawing the breach of contract claim, or warranted the refusal of leave to do so, because (as was the case) what was in effect being asked for was a transfer having regard to the existence of the jurisdictional limit, then

(ii) a proper exercise of judicial discretion by that Chairman would not leave Mrs Osborne vulnerable to arguments that she could not pursue the breach of contract claim by ordering that it be dismissed.

26. It follows from what we have said that as they acknowledge Mrs Osborne's advisers through ignorance of the Barber case made a serious mistake in not pointing out or arguing that the contract claim should not be dismissed.
27. The present stance of the Respondent company is that although it and its advisers (i) were also ignorant of the Barber case and the argument it gave them at the time the order of dismissal was made, and (ii) thought at that time that the Respondent company would be facing a claim for breach of contract in the courts, it should now be permitted to take advantage of the mistake made by Mrs Osborne's advisers and the order of dismissal made by the Chairman without argument and assert that Mrs Osborne cannot now pursue her breach of contract claim.

The Appeal

28. In the skeleton argument put in on behalf of the Respondent company it was asserted that withdrawal of an originating application or part thereof is dealt with in Rule 13(2)(a) and that dismissal of the breach of contract claim was the inevitable consequence of withdrawal.
29. In our judgment correctly counsel for the Respondent company did not pursue the second part of that argument at the hearing and thus accepted that the Chairman had a discretion whether or not to dismiss the breach of contract claim. In our judgment this follows for the use of the word "may" in Rule 13. Further and in any event an important part of the reasoning in the Barber case is that the Employment Tribunal has a discretion (see [1996] IRLR at 387F).
30. It was argued on behalf of Mrs Osborne that in dismissing the contract claim the Chairman had acted ultra vires. We do not agree. This argument was that the only power of the Chairman to dismiss is contained in Rule 13 (2)(a) and that this did not apply because it only applied to withdrawal of an originating application with the result that no proceedings remained on foot. Accordingly it was said that this rule did not apply to the withdrawal of a claim (or part of a claim) in an originating application. We do not accept that argument. In our judgment the rule did apply to the withdrawal of the breach of contract claim which could have been brought in a separate originating application and the Chairman had power to dismiss pursuant to Rules 13(2)(a) and (8). In our judgment as a matter of construction the rule in its context includes the whole, or any, part or parts of an originating application and the proceedings relating to that or those parts. It is therefore unnecessary for us to consider whether the Chairman could have dismissed the breach of contract claim pursuant to Rules 13(1) and (8), and further or alternatively Rule 16, or whether the only recourse open when a party gives notice of withdrawal, or indicates that he wishes to withdraw, part of his claim or one of several claims in an originating application is to deal with it at a hearing pursuant to Rule 8.
31. The Respondent company argued that the normal, or general, course for a Chairman when dealing with the withdrawal of a claim was to dismiss it and that there was no error of law in the Chairman taking that course in the absence of any submission made to him that he should not do so. We accept the first part of that submission but not the second. In our judgment a proper analysis of the position was that in ordering a dismissal on withdrawal the Chairman was exercising of his own motion a discretion he had not been invited to exercise and if it can be shown that in doing so he erred in law the appeal should be allowed notwithstanding the fact that no objection was made when he announced his decision.
32. It seems most likely that the Chairman gave no real thought to the making of the order of dismissal or to the exercise of a discretion in respect thereof. In the circumstances that was understandable but in our judgment it was an error of law because in making an order of dismissal which he had not been invited to make, and thus of his own motion, the Chairman should have exercised his discretion and thus given it thought and perhaps invited submissions thereon. We repeat that the Chairman was well aware that the reason for the withdrawal was that the Applicant wanted to pursue the claim in the courts. In our judgment, on a proper exercise of that discretion the Chairman should have taken into account the point that an order dismissing the claim would, or would arguably, preclude the Applicant from pursuing the claim elsewhere because of the decision in the Barber case. Further in our judgment if he did give thought to the exercise of his discretion and take that point into account he erred in law in making the decision to dismiss. For the reasons given above (see paragraphs 24 and 25) in our judgment when that point is taken into account the claim should not be dismissed.
33. We add that in our judgment correctly no point was taken on this appeal by reference to for example the cases of Jones v Burdett Coutts School [1998] IRLR 521 and Glennie v Independent Magazines (UK) Ltd [2000] IRLR 719 that the Applicant should not be permitted to argue on this appeal that the Chairman should not have made an order dismissing the breach of contract claim on the basis that the point had not been raised below. In our judgment this is a case when we should allow the point to be raised on appeal because the Chairman made the order of his own motion without hearing any argument on the point.
34. Accordingly in our judgment Mrs Osborne succeeds on her appeal and we set aside the order dated 29 February 2000 that "the applicant's claim for breach of contract in respect of a profit share shall be dismissed on withdrawal by the Applicant".

Remission or order

35. In our judgment we should decide the matter ourselves. In reaching this decision we have had regard to Harvey T1712/3, the cases referred to therein and Kapadia v London Borough of Lambeth [2000] IRLR 699. By deciding the issue ourselves we would not in our judgment be usurping the fact finding or discretionary powers of the Employment Tribunal. Indeed neither side submitted that there were any facts other than those which we have set out above that were relevant. We reject the argument put on behalf of the Respondent company that we should remit so that if the matter goes to the Court of Appeal it would have the benefit of the views of the Employment Tribunal as well as this Tribunal.
36. Further for the reasons set out in paragraphs 24 and 25 above we are of the view that any Employment Tribunal properly exercising its discretion in the circumstances of this case would not order that the breach of contract claim be dismissed.

The refusal of the review

37. Although it can be said, having regard to our conclusion on the appeal, that the issues relating to the review are academic for the reasons we have given it seems to us that we should consider them separately. We do so on the hypothetical basis that there was no appeal against the substantive decision.
38. The Chairman refused to review on the basis that the review had no reasonable prospect of success. In our judgment in so doing the Chairman erred in law in the following ways:

(a) We do not agree that the situation facing the Chairman was a completely different one to that which existed in Harber v North London Polytechnic [1990] IRLR 198.

(b) In our judgment it is at least reasonably arguable that the approach taken in the Harber case should be applied to this one (see also as to the approach to be taken Harvey paragraphs T 1138 to 1146 and Jones v Foxboro (EAT/988/98) paragraphs 101 to 111).

(c) The Applicant was not seeking to change her position again as the Chairman asserts in paragraph 2 of his reasons for refusing the application for a review. Rather the Applicant was seeking a review to obtain the order that she asked for through her Counsel. It was the Chairman who without invitation made an order of dismissal.

(d) The Chairman was wrong in law to conclude that the application for a review had no reasonable prospect of success having regard to his view of the Barber case as expressed in paragraph 3 of his reasons for refusing the review. It is at least arguable that that view is wrong and it follows from that that arguments which would have a reasonable prospect of success existed on the review.

39. Accordingly in our judgment we set aside the Chairman's refusal to review.

Remission or Order

40. In considering whether or not we should remit or decide the question of review ourselves, we have to have regard to the fact that the application was made late and to the substance of the application. The reason why the application was made late is apparent from the application for the review. It was that until 16 March the Applicant and her advisers did not appreciate that the decision in the Barber case founded an argument that the Applicant was no longer entitled to pursue her breach of contract claim. Having regard to that and (i) the Chairman's endorsement of the notes made by the Applicant's Solicitors of the hearing before the Chairman, and (ii) the common ground between the parties, in our judgment no further issues of fact arise on the questions relating to:

(i) extension of time, or

(ii) the substance of the review.

41. It follows that for the same reasons as given in paragraph 35 hereof, we consider that we should deal with the issues concerning the review ourselves.
42. We add that in our judgment no Employment Tribunal properly directing itself, should reach different conclusions on the issues concerning the review to those we have reached and set out below.

Extension of time

43. Counsel for the Respondent company submitted that we should apply directly, or by analogy, the approach set out in United Arabs Emirates v Abdelghafar [1995] IRLR 243, in particular, at paragraphs 26 to 30 of the judgment of Mummery J. That case relates to an extension of time for appealing from a decision of an Employment Tribunal to this Tribunal and indicates that the time limits will only be relaxed in rare and exceptional circumstances.
44. We do not agree that by analogy with the Abdelghafar case the exercise of discretion to extend time for a review pursuant to Rule 15 of the Employment Tribunal Rules 1993 should only be exercised in rare or exceptional circumstances, or only if reason that excuses the delay is given. In our judgment this is because the nature and purpose of a review is different to that of an appeal and the time limit for a review is a much shorter one. Also, and in any event, in our judgment the test or approach in the Abdelghafar is not one that requires a reason that excuses the delay (or a good reason for the delay) to be given as a prerequisite or condition precedent to the exercise of the discretion to extend time.
45. In our judgment the approach to the judicial discretion conferred by Rule 15 in respect of the time limit for seeking a review is one which falls to be exercised in accordance with the more general approach taken to the grant of extensions of time and thus one that is not qualified by an approach that an extension will only be granted in rare or exceptional circumstances. The reason for the delay and its length are therefore relevant factors but a good or adequate reason for the delay is not a condition precedent to the exercise of discretion in favour of an extension. In determining in the exercise of the judicial discretion whether or not to grant an extension all the relevant circumstances of the case should be taken into account.
46. In any event, even if we are wrong and the approach in the Abdelghafar case should be applied, we are of the view that this case is a rare and exceptional case in which an extension should be granted.
47. In our judgment an extension should be granted because:

(a) the reason for the delay has been given and in the circumstances of this case we regard it as one that excuses the delay and in any event one that warrants the Tribunal moving on to consider whether, in the exercise of its discretion, it should grant an extension,

(b) given the understanding of the parties at the time of the hearing before the Chairman when he made his order that the breach of contract claim be dismissed on withdrawal, in our view the balance of injustice and hardship points firmly in favour of a conclusion that time should be extended. As to this we do not accept the argument of the Respondent company that the letter dated 22 October 1999 (referred to in paragraph 8 above) founds, or points to, the opposite conclusion,

(c) the Applicant and her advisers acted very promptly as soon as they were aware of the problem, and

(d) the delay was a short one.

The Review

48. Rule 11(1)(e) confers a discretion in wide terms. However, the discretion is a judicial one which must be exercised cautiously, not as a substitute for an appeal and with regard to the purpose of the Rule the interests of both parties and the public interest in finality of litigation (see, for example, Lindsay v Ironside Ray & Vials [1994] ICR 384 at 393 A/H). However (and not forgetting those qualifications) one of the purposes underlying the rule is the correction of a mistake (particularly when the Tribunal has contributed thereto) if the interests of justice require a review to effect that correction. This is apparent, for example, from the decision in Harber v North London Polytechnic [1990] IRLR 198 (see, in particular, paragraph 26 of the judgment of Balcombe LJ). In that paragraph Balcombe LJ refers to the discretion conferred by the Rule being exercised on well established principles, one of which must be: "Was there any mistake made at the original hearing". Here, in our judgment, there was a mistake made at the original hearing and the Chairman contributed to that mistake.
49. In our judgment the mistake was an understandable one because, as we have accepted earlier in this judgment the normal or general order made on withdrawal of a claim is that the claim be dismissed on withdrawal. This is because the normal or general reason for the withdrawal of a claim is that the Applicant no longer wishes to pursue that claim. Here, however, that was not the Applicant's purpose. Indeed, the whole point of the Applicant's application was to enable her to pursue her breach of contract claim in a court because of the jurisdictional limit placed on an Employment Tribunal. This was the common understanding of both parties, their representatives and the Chairman at the Tribunal.
50. In our judgment in those circumstances the interests of justice require a review to achieve the purpose that everyone at the hearing before the Employment Tribunal had in mind. Indeed, in our judgment, it would be very unfair and would offend justice if the order was not reviewed so as to achieve a result in accordance with the Applicant's purpose and everyone's understanding at the time that following the order the Applicant could pursue her claim in a court. Again we do not accept the argument of the Respondent company that the letter dated 22 October 1999 (referred to in paragraph 8 above) founds, or points to, the opposite conclusion.

The order we make

51. In our judgment it is better to approach the Applicant's application as one where she seeks

(i) leave to amend her Originating Application pursuant to Rule 13 by deleting the breach of contract claim therefrom, or

(ii) to discontinue that claim.

We are of this view because both of such approaches do not give rise to the thought process that the claim should be dismissed on withdrawal. As we have said we accept that this can be a natural thought process notwithstanding that the old RSC Order 21 Rule 4 provided that: "subject to any terms imposed by the court the fact that a party had discontinued an action or counter-claim or withdrawn a particular claim made by him therein should not be a defence to a subsequent action for the same, or substantially the same, cause of action".

52. We repeat that the purpose of the Applicant's application was to enable her to bring her breach of contract claim in a court. Accordingly, we will order that the Applicant do have leave to amend her Originating Application by removing her breach of contract claim therefrom for the purpose of enabling her to pursue that claim in a court.
53. An Originating Application with an appropriate amendment to Box 1 and such amendments as the Applicant may be advised are appropriate to the rider referred to in Box 11 is to be served within 14 days of the date upon which this judgment is delivered.