James v Blockbuster Entertainment Ltd
|England & Wales
|SIR PETER GIBSON,Lord Justice Sedley,Lord Justice Wilson,Lord Justice Brooke
|25 May 2006
| EWCA Civ 684, EWCA Civ 1790
|Case No: A2/2005/2358,A2/2005/2358
|Court of Appeal (Civil Division)
|25 May 2006
 EWCA Civ 1790
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Employment Appeal Tribunal
Royal Courts of Justice
Sir Peter Gibson
MR J DAVIES QC and MR D MARTIN (instructed by Bird & Bird) appeared on behalf of the Appellant
The Respondent was not represented and did not attend
1. The applicant, Blockbuster Entertainment Ltd (Blockbuster) , renews its application for permission to appeal to this court, permission having been refused on the papers by Lord Justice Chadwick. The claimant, Anthony James, who is black, had been employed by Blockbuster since June 2001 as a customer service representative. He has claimed in two originating applications, one presented on 1 December 2003 and the other on 16 July 2004, that he has been victimised, harassed and discriminated against because of his race by white management and staff of Blockbuster.
On 24 January 2005 an Employment Tribunal, sitting in London Central, struck out the two complaints. It did so on the grounds (1) that the claimant was in breach of the tribunal orders, and (2) that the claimant had unreasonably conducted the proceedings up to and including the hearing that day. One of the orders of which the claimant was found to be in breach was the order made at a directions hearing on 24 June 2004 by a tribunal chairman, Miss Lewzey. The claimant had previously been asked to particularise his claim, but the particulars he provided were inadequate. Miss Lewzey, when making her order, required the claimant to particularise his claim in such a way that Blockbuster understood the claim made against it and ordered him to reply to Blockbuster's request for further information of the details of the complaint by sending a reply to Blockbuster and the tribunal by 22 July 2004. In paragraph 5 of its decision the tribunal said:
"So far as Miss Lewzey's order for the claimant to reply to the request for further information by 22 July 2004 was concerned, the claimant in fact never provided such further particulars."
I emphasise the word "such" because it is Blockbuster's submission that the tribunal did not say that no further particulars were provided. Instead, the tribunal was saying that the particulars ordered were not provided. Those particulars, I point out, only relate to the first of the two complaints.
On 5 October 2004, by which time the second complaint had been presented, more case management orders relating to both complaints were made by another tribunal chairman, Mr Pearl. He ordered that the complaints be tried together for six days commencing on 24 January 2005. The orders included that each party prepare a list of documents by 16 November 2004, that the parties agree a trial bundle and that by 17 December 2004 there should be exchange of witness statements by each party providing to the other copies of the witness statements of all that party's witnesses. The tribunal found that there were failures by the claimant to comply fully with those orders despite arrangements being made by Blockbuster's solicitors for such compliance to be performed by the claimant. Because of the claimant's failure to give disclosure Blockbuster had obtained a further order on 20 January 2005 for disclosure by the claimant by 4 pm the next day, but again there was no compliance.
On 24 January 2005 the claimant attended the tribunal for the hearing with 50 or 60 pages of documents which had not been copied either for the tribunal or for Blockbuster. The tribunal concluded that the claimant had wilfully and deliberately disobeyed orders for disclosure. It stated in paragraph 19.2 that his failures in this regard were but a single example of the unreasonable conduct of the proceedings by the claimant otherwise evidenced by three matters: (1) his failure to comply with the order for particulars made by Miss Lewzey; (2) his failure to effect proper exchange of witness statements by providing a signed copy of his witness statement; and (3) his appearance at the hearing with an amended witness statement which he had made no attempt to serve on Blockbuster. After considering other relevant matters such as whether there should be an adjournment, the tribunal said:
"In all the circumstances, we consider that an order striking out the claimant's claims in the first two originating applications, draconian order that it be, is the only proportionate and fair course to take in this case given that we do not consider that a fair trial is currently possible and, furthermore, having regard in particular to our finding that the claimant has wilfully flouted the orders of the tribunal."
It said the case was a particularly bad example of the flouting of the tribunal's orders.
The tribunal at a further hearing ordered the claimant to pay £10,000 costs. In its decision it said that, for the hearing on 24 January 2005, Blockbuster, by reason of the claimant's failures, had been to an extent working in the dark and had to prepare on the basis that almost anything might be raised by the claimant on the day of the hearing.
On appeal by the claimant one of the many grounds of appeal was that the tribunal misled itself by stating that the claimant was in breach of an order of Miss Lewzey. Mr Justice Elias, giving the judgment of the Employment Appeal Tribunal, said:
"8 The tribunal record that the claimant never did provide the further particulars ordered by Miss Lewzey. In fact that is incorrect as Mr Martin concedes. The position was that he did provide detailed further and better particulars. They were dated 17 July 2004, that is within the time scale fixed by the tribunal order. The respondents say that they believe that these particulars have been backdated since they were not received by the respondents until shortly before a later pre-trial conference on 5 October. (We will return to that in a moment.)
9 There is no doubt that the respondent sent various letters to the applicant seeking these further particulars and they indicated that they would be making a strike out application if they were not provided. Unfortunately, there is no evidence before us as to when the particular were received by the tribunal and whether that was in time or not. The respondents also submit that the particulars provided were not in full complaince with the order. However, it is right to say that it has never been determined whether the particulars were provided in time or whether they were in proper compliance with the terms of the order. On the face of it, it must be said the particulars do provide some detail of the case which the claimant was advancing."
The judge reverted to this point in paragraphs 38 ff, saying that other failures by the claimant were "of marginal importance" compared with failure to comply with the order for particulars. The judge added that the tribunal gave no indication that it was determining whether there had been a failure to comply with the order for particulars. The tribunal considered that the misapprehension by the tribunal relating to the particulars rendered its conclusions flawed and said it was far from satisfied that the conclusion would have been the same had the tribunal realised that there had been particulars provided, and that it was disputed whether or not they had been provided in time and complied with the order made. The EAT therefore allowed that aspect of the appeal and remitted the matter to a fresh tribunal.
Blockbuster seeks to appeal on a number of grounds. First, it says that interference by the Employment Appeal Tribunal with the tribunal's exercise of discretion to strike out the two complaints was unwarranted even if, which was not admitted, there had been a misdirection in relation to the failure to provide further particulars of one complaint. Second, the other grounds on which the tribunal decided to strike out were sufficient for the conclusion to strike out. Third, the conclusion of the Employment Appeal Tribunal was perverse. Fourth, the tribunal was entitled to find a failure to comply with the order made by Miss Lewzey for particulars because the request was not answered. Fifth, the tribunal was aware that the claimant had replied to the request for particulars, but there was an issue as to the adequacy of the particulars which were in the bundle for the tribunal. Sixth, any mistake by the tribunal applied only to the first complaint and not to the second complaint. Seventh, the remitter should have been to the same tribunal.
Lord Justice Chadwick, in refusing permission to appeal, pointed to the concession which the EAT recorded had been made, that particulars had been provided. He said it was not clear why the EAT was wrong to record that concession. He said that it could not be said the tribunal would have been bound to reach the same conclusion even if it had not been mistaken as to the failure to provide particulars.
In its paragraph 4.14A statement Blockbuster's counsel said that Blockbuster's junior counsel, Mr Martin, had accepted before the Employment Appeal Tribunal that some particulars had been given by the claimant, but Mr Martin had not accepted that they were the particulars which Miss Lewzey had ordered, nor that they were delivered in due time to Blockbuster. Reliance is placed on a note of the EAT hearing which was made by Blockbuster's solicitor. This shows that Mr Martin acknowledged that some particulars were received but that he told the EAT that not only were they delivered "very, very late", but also that they...
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