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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Arkell & Anor v. Tibbetts [2000] EAT 461_99_0702 (7 February 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/461_99_0702.html Cite as: [2000] EAT 461_99_0702, [2000] EAT 461_99_702

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APPEARANCES

 

For the Appellants	THE FIRST APPELLANT IN PERSON
For the Respondent	THE RESPONDENT NEITHER BEING PRESENT NOR REPRESENTED


 


MR JUSTICE LINDSAY (PRESIDENT):

1. On 25th June 1999 the Registrar of the EAT refused an extension of time for an appeal out of time by Mr N D Arkell and PSU Designs Ltd in the matter that had begun with an IT1 from Mrs S Tibbetts against Mr Arkell and PSU Designs Ltd. Mr Arkell is the joint managing director of PSU Designs Ltd but had been added as an individual party in addition to PSU designs by Mrs Tibbetts.
2. The chronology is necessary to have in mind, in outline at least, before one comes on to the immediate appeal, which is an appeal against the Registrar's decision which I have just referred to.
3. As long ago as 17th July 1998 the company, PSU Designs and Mr Arkell, received from Mrs Tibbetts an IT1 form of complaint. There was a prompt reply by PSU and Mr Arkell on 20th July 1998 when they completed their IT3.
4. On 18th August 1998 the Employment Tribunal gave notice that the substantive hearing of the matter would be on 28th September 1998, so that a decent interval was given for preparation of the case.
5. However, PSU and Mr Arkell's argument was at that time and has since been that because the Tibbetts' side were not providing documents and information that was required in order that there should be fair hearing of the case, Mr Arkell and the company were not able adequately to prepare their own case. It is Mr Arkell's argument that not only were papers and information not supplied but that orders for supply were not honoured.
6. Mr Arkell and PSU were sufficiently concerned that they could not prepare in time and, as I say, they blamed that on the failures of the other side, that on or around 15th September 1998 they requested that the matter should be adjourned from the due date of 28th September and also invited the Employment Tribunal to direct that there should be a directions hearing so that whatever information and paperwork was necessary could indeed be supplied and exchanged and so on in time for an adjourned hearing.
7. On 22nd September 1998 there was a letter from the Chairman simply refusing a request for further and better particulars. The Chairman, Mr Rees, did not mention that any request for an adjournment had been received, did not mention that any request for a directions hearing had been received and simply, as it seemed, dealt with a refusal to supply further and better particulars. No reasons were given for the decision.
8. There had been before and after 22nd September 1998 movements towards a compromise between the Tibbetts' side and PSU and Mr Arkell. Correspondence and telephone calls were taking place. Shortly after 22nd September 1998, when the request, as it seemed, for further and better particulars was refused, a compromise went forward between the parties. In some way the tribunal was informed of the compromise.
9. On 24th September 1998, it would seem, the tribunal agreed to postpone the hearing otherwise fixed for 28th September.
10. By 30th September 1998 the Tibbetts' side, according to their solicitor, had accepted Mr Arkell's basic terms. On 3rd October 1998 PSU's solicitors forwarded a cheque which was in settlement of the case.
11. At an early date from October 1998 Mr Arkell and PSU complained though that they had been "railroaded" into a compromise. It is Mr Arkell's argument and PSU's that once the Chairman had refused relief on 22nd September 1998 they were really under duress to settle the case. They complained to the Employment Tribunal.
12. At that stage it had not been realised by PSU and Mr Arkell that the Employment Appeal Tribunal had a role in correcting errors of law at the Employment Tribunal. Had there been a reasoned decision sent to Mr Arkell and PSU then it would doubtless have been accompanied in the usual way by the printed form that indicates not only that there is an appeal open to the Employment Appeal Tribunal but even gives the address to which a party wishing to appeal can write. However, because PSU and Mr Arkell received no more than a letter on 22nd September by way of a decision, they got no such explanatory leaflet.
13. On 29th January 1999 a date was fixed on to a form of Notice of Appeal by Mr Arkell, as managing director of PSU; it was not a very well completed Notice of Appeal form because it did not give the date of the decision against which the appeal was intended to be made. The EAT received that completed form on 1st February 1999.
14. On 1st April 1999 the EAT wrote to PSU and Mr Arkell asking that they be supplied with the date of the decision which was appealed against and, eventually, on 7th April 1999 Mr Arkell indicated that the date was indeed 22nd September 1998. In other words, the position is that the intended appeal is only against a letter, although not less an order for that, that simply refuses a request for further and better particulars.
15. On 11th May 1999, no doubt having been told that this was necessary by the EAT, PSU and Mr Arkell applied for an extension of time to lodge the Notice of Appeal out of time. In the ordinary way the EAT then approached the other side's solicitors. On 20th May 1999 Mrs Tibbetts' solicitors opposed any extension of time being granted to PSU and Mr Arkell.
16. As I indicated at the beginning, on 25th June 1999 the Registrar refused the extension of time. On 3rd August 1999 Mr Arkell and PSU asked for leave to apply to the Court of Appeal, but this is an unnecessary step at that stage because in the ordinary way the appeal from the Registrar's refusal is to the President. On 6th August 1999 the EAT wrote to a letter to PSU and Mr Arkell indicating that the request for leave to apply to the Court of Appeal would be treated instead, conveniently, as an appeal against the Registrar's refusal to extend time. In other words, the matter would have to come before the President.
17. On 24th January 2000 PSU indicated that it wished to call a witness for this hearing today, on 7th February 2000, namely Mr Rees, the Regional Chairman, whose name had appeared on the decision of 22nd September 1998. Mr Arkell has addressed me but has not, in fact, pressed that aspect of things, but, if he had pressed it, it seems to me he would have had no effect because I cannot see that it would be right to require Mr Rees, as Regional Chairman, to attend today.
18. That is something of the background, but by no means all of the background. There are a great many papers prepared by Mr Arkell and he has taken me to many of them. It is now right to pause and to see where this leads us.
19. The order sought to be appealed against is that of 22nd September 1998. It merely refused further and better particulars. It gave no reasons, either summary or extended. The usual form accompanying a decision of the Employment Tribunal, at least the decision of a kind likely to be appealed against, was not accompanying that letter and hence Mr Arkell and PSU had, they say, no knowledge of the role of the EAT at that stage.
20. That a Chairman alone can deal with an application such as was in front of the Employment Tribunal at the time is quite plain. It is often the practice, too at these generally rather uncontentious procedural stages not to give reasons. But here, when a point was taken up by Mr Arkell and PSU that no reasons had been given, it seems to have been recognised that the absence of reasons was an oversight because there is a note in the papers from Mr Rees indicating that he had thought that someone in the office would have transcribed his own note of reasons and included them in the order, which they never were. At all events, one way or another PSU and Mr Arkell never got any reasons, summary or extended, for the decision.
21. Shortly after 22nd September 1998, at a date in October 1998, the proceedings were stayed by reason of the compromise. At the outset of today's hearing I asked Mr Arkell where the order was that either dismissed proceedings or stayed them. Although we have a great deal paper, we have not got that order. Mr Arkell does not dispute it, indeed, he asserts that there was a stay; not a dismissal it seems, but a stay. Any form of note or brochure to indicate how one appealed to the EAT, it seems, did not accompany it. Indeed, as the proceedings were stayed it perhaps would have been unusual that it should generate an appeal. The Chairman plainly understood that this stay had been preceded by a compromise that was effective in that solicitors or ACAS or both had been involved and that the stay was the product of a thoroughly considered compromise. At all events an order for a stay was made.
22. The Chairman, as I indicated, was acting under the impression that a fully formal COT3 compromise had been reached and hence a stay was appropriate. Mr Arkell says that solicitors and ACAS were not involved. They were plainly involved to some extent and the Chairman obviously took the case to be that they had been involved. Indeed, the sum of money that was due under the compromise has long since been paid. Mrs Tibbetts' solicitors indicate that the terms of compromise had been specially altered to exclude something which Mr Arkell had indicated he did not agree.
23. It would be very difficult for me to go into the history of the compromise on the papers that I have in front of me because they are inadequate in the sense that the order for a stay is not present amongst them and also one would need, for a full understanding, to see not only the open correspondence and communications on both sides but even the without prejudice ones which plainly here took place.
24. I find it difficult to see how Mr Arkell and PSU can say that they had to compromise the matter, which is at the heart of their complaint. Duress is what Mr Arkell and PSU assert.
25. The case is put in this way: that Mr Arkell says that he did not know when he received the order of 22nd September 1998 that he would be able to appeal against that and to seek an adjournment, after all, of the hearing of 28th September 1998. He felt that he was being railroaded into a decision in that the case would necessarily be heard on 28th September and that by 28th September it would be quite impossible for PSU and himself to have prepared their own case adequately and hence that he was forced into a compromise.
26. That position is utterly mistaken, in the sense that he was able, as was PSU, to appeal the order of 22nd September 1998. Moreover, PSU and Mr Arkell could have attended the hearing on 28th September 1998 and could have again pressed for an adjournment of the matter in order that their case could be adequately prepared. They would have had the opportunity of pointing out to the Chairman on the day what inadequacies there were on the Tibbetts' side that made it impossible for the PSU and Arkell side fairly to present their case on that day, 28th September 1998. The whole case for duress seems to me to be based on a foundation which does not exist. But, for all that, Mr Arkell and PSU began a campaign the gist of which was that the company and he had been railroaded into a compromise.
27. No Notice of Appeal was received until 1st February 1999 against the decision of 22nd September 1998. That Notice of Appeal was, of course, hopelessly out of date if one could count the letter of 22nd September 1998 as the starting point for time running. However, time for the lodging of an appeal runs not from date of an oral decision or not even the date of an order, but runs from the sending out of extended reasons. Of course it is Mr Arkell's and PSU's case that not only were there not extended reasons there were not even summary reasons, indeed, there were no reasons at all. Let it therefore be assumed that in Mr Arkell's and PSU's favour that time for the lodging of a Notice of Appeal is not only not expired but that it has not yet, for want of extended reasons, even begun.
28. The position in such a case would nonetheless be that the proceedings have been stayed in October 1998 and the stay has not been lifted and there has been no appeal against the stay.
29. I fail to see, and I drew this difficulty to Mr Arkell's attention at the very beginning of the case, how I can allow an appeal to go forward, whatever argument there would be in favour of it, if it is in proceedings which have, subsequently to the order sought to be appealed against, been completely stayed. There is, as seems to me, no answer to that question.
30. I do not want to encourage Mr Arkell and PSU to throw good money after bad. They no doubt would wish to pause and reflect how best to proceed. But it does seem to me that so long as the proceedings are stayed and there is no appeal against the stay I cannot assist them. Whether they would be well advised to appeal out of time (as it necessarily now would be) against the stay, if reasons were given in relation to the stay, or to launch an appeal against the stay because no reasons were given for it, is a matter for them. I do not want to encourage unnecessary proceedings. But simply in terms of the matter in front of me at the moment - the extension of time relative to an appeal against the decision of 22nd September 1998 - that, it seems to me, is quite impossible, given that thereafter the proceedings were stayed and there has been no appeal against the stay. Accordingly, I must dismiss the appeal of Mr Arkell and of PSU.