0800 019 7073 - Direct Access Barristers, Public Access Barristers, Employment Barristers Chambers - Employment Law Barristers Directory

Application for Revocation of a Default Judgement

December 9, 2011
Leave a Comment

Rule 33 of the Employment Tribunals (Constitution & Rules etc) Regs 2004.  Regulation 33 (2) would apply to the application and it states:

“the application must state the reasons why the default judgement should be varied or revoked. When it is the Respondent applying to have the default judgement reviewed, the application must include with it the Respondent’s proposed response to the claim [where that has not been received by the employment tribunal] an application for an extension of the time limit for presenting the response and an explanation of why rules 4(1) and (4) were not complied with.”

Rule 4(1) deals with presenting the response within 28 days of receiving a copy of the claim. Rule 4(4) states that subject to “rule 33 the employment judge shall only extend the time within which a response may be presented if he is satisfied that it is just and equitable to do so.”

Request for extension should have been made pursuant to Rule 4(1), 4(4), setting out why it is just and equitable to extend the time limit for submission of the response.

According to 33(1) when read with 33(2) the request for extension of time for submission of the response should be in the request for review. The rule states that the application for extension of time should be within 14 days of receipt of the default judgement.

Rule 33(6) requires a good reason why the response has not been presented in the applicable time limit. Rule 33(2A) allows  employment judges to refuse applications without need for hearing where the requirements of rule 33 paragraph (2) have not been met.

Rule 33(5) There should be a reasonable prospect of successfully responding to the claim or part of it. The EAT in Pestle & Mortar v Turner UKEAT/0652/05 stated that this was a point the tribunal should take into account in exercising their discretion.

In the Pestle case it was held that it was necessary to weigh the balance of prejudice to each of the parties in the case as regards revoking the default judgement.

In Kwik Save Stores Ltd v Swain [1997] ICR 49 EAT per Mummery P who held that the relevant factors to consider are:

1.the explanation for the non-compliance
2.the merits of the events
3.the balance of possible prejudice to each party

Rule 4A requires the application to include notification to all parties that any objection to the application must be sent to the employment tribunal within seven days of receiving the application or, if a hearing of any type is due to take place before the expiry of that seven day period, before the date of that hearing and that any objection to the application must be copied to both the employment tribunal office and all other parties.

Parties need to confirm (where represented) that they have complied with their obligations under Regulation 11 (4) schedule 1 of the employment tribunal (constitution and rules of procedure) Regulations 2004 and that a copy of correspondence has been sent to other party’s solicitors.

Posted in Employment Law
Tags: , , , , , , , , , , , , , , , , , , , , , , ,

Employment Appeal Tribunal Grounds

December 8, 2011
Leave a Comment

Grounds for Employment Appeal tribunal notice of application:

Ground 1 Perverse findings of fact amounting to an error of law and erring on a point of law

The legal basis for Ground 1 comes from Chiu v British Aerospace plc [1982] IRLR 56 where it was held that an employment tribunal could only be described as perverse where no tribunal, properly directed in law, could have reached the decision that the particular tribunal has reached. Further it was held in Neale v County Council of Hereford and Worcester r 1986] IRLR 168 Where the court of appeal held “neither the EAT nor this Court should disturb their decision unless one can say in effect: ‘My goodness, that was certainly wrong’.”  Further in Piggott Brothers v Jackson [1992] ICR 85 Appellate courts should look to see if the finding of fact could be supported by any evidence. The Claimant also seeks to rely on Stewart v Cleveland Guest (Engineering) Ltd [1994] lRLR 443, where it was held that “[The EAT) should only interfere with the decision of the Industrial Tribunal where the conclusion [The EAT] should only interfere with the decision of the Industrial tribunal where the conclusion is very clearly wrong’ or ‘must be wrong’ or ‘is plainly wrong’ or ‘is not a permissible option’ or ‘is fundamentally wrong’ or ‘is outrageous’ or ‘makes absolutely no sense’ or ‘flies in the face of properly informed logic’.” This was supported in Yeboah v Crofton [2002] EWCA Civ 794.

Ground 2 Inadequate Reasoning

In Meek v City of Birmingham DC [1987] IRLR 250 it was held that there should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises”.  In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 the judgment in breach of Article 6 of the European Convention on Human rights must lack sufficient reasoning to this extent.

Ground 3 Error of Law

Error in application of particular legislation or case law.

Posted in Employment Law
Tags: , , , , , , , , , , , , , , ,

    Contact us 0800 019 7073 – Direct Access Barristers / Public Access Barristers – Employment Law Barristers – www.EmploymentBarristers.org

    This is an informational website about UK Barristers and law. We define what they do and how they can assist you at courts, tribunals and in relation to legal advice. We can help in your search for a Direct Access Barrister / Public Access Barrister, Employment Barrister or Employment Barristers Chambers UK wide.

    Keywords barristers, barrister chambers, barrister, barristers chamber, employment lawyer, employment lawyers

    Search website

    SocialVibe


    Disclaimer

    We own all rights to the content of this site therefore any attempt made to sell or distribute them by another individual or company, without our written permission will constitute an infringement of copyright law. Any party purporting to do so will be reported to the relevant authorities and legal action will be taken.The contents are for informational purposes only and do not constitute legal advice. If you have a legal problem you should consult a lawyer for advice. The authors exclude themselves from all liability for any reliance academic or otherwise on the contents. © Copyright All Rights Reserved 2011-2012

    Privacy Policy

    Web site owner privacy policy Privacy Statement The web site owner respects the privacy and security of its users. The information you provide to the web site owner is used selectively by us to qualify solicitors or barristers for your case, and put you in contact with the suitable solicitor(s) or barristers. Some of the information will be passed on to the solicitors or barristers that we deem to be suitable so that they can contact you to progress your case. In order to demonstrate our commitment to your privacy, we have prepared this statement disclosing the privacy practices for the the website owner site. This statement describes what personally identifiable information we collect from you, how and when information is used, how we protect your information, and who has access to your information. i) What information is collected? The website owner asks you to provide various types of personally identifiable information to enhance the quality of the service we can provide to you. As part of the process of using the site, the web site owner asks for information such as your name, e-mail address, and summary case details. The more accurate the information you provide, the better we are able to customise your experience and match you to a solicitor or barrister who can assist you with your legal matter. Following the use of our service, we may ask you for other information, such as completion of a customer satisfaction survey. Whenever you provide personally identifiable information to us, we will comply with our privacy policy. As with the vast majority of Web servers, our one automatically creates log files for each visitor who accesses our sites. These "access logs" allow us to make our site more useful to our visitors. The access logs do not record a visitor's name, address, phone number, or any other personally identifying information. Rather, these log files may contain some or all of the following information: The date of the visit The time and length of the visit The path taken through the Web site The browser being used A list of files downloaded or viewed The Internet Protocol Address (IP Address) of the machine accessing our Web site* Any errors encountered Web site owner uses this information to aid the technical administration of the sites and to better understand how the site is functioning for our users. ii) How and when information is used? Our primary goal in collecting personally identifiable information is to provide you, the user, with a high quality service, i.e. quickly contacting you to solicitors or barristers suitable for your case (and to you). This is contacted via the form(s) completed on the Web site owner website. In addition, our Web Server Logs collect non-personally identifiable information, such as which pages each user visits and the domain name of visitors. This information is used, for example, to help us identify which areas of our site are of interest to our visitors. Web site owner also collects the Internet Protocol (IP) addresses of its visitors for the purposes of system administration. iii) Who has access to the information? Except as described below, Web site owner will not disclose any individually identifiable information about its users to any third party without first receiving that user's permission. Web site owner may disclose personal information when we believe in good faith that the law requires it or to protect the rights or property of Web site owner. When you are on the Web site owner site and asked for personal information, you share that information with Web site owner who in turn shares that information with solicitors who Web site owner is contacting on your behalf to qualify the solicitors' suitability for your case. You should understand that these solicitors might have separate privacy and data collection practices. Web site owner has no control over and accepts no liability for these independent practices. In order to understand the individual privacy policies that each solicitor or barrister follows, you should ask him or her for a copy of the privacy policy. iv) How we protect your information? The privacy and protection of your personal information is important to us. In addition, any user statistics that we may provide to prospective partners regarding your Web site owner usage are provided in the aggregate only and do not include any individually identifiable information. Unfortunately, no data transmission over the Internet can be guaranteed to be 100% secure. As such, despite our efforts to protect your personal information, Web site owner cannot ensure or warrant the security of any information you transmit to us, or to or from our online products or services. You transmit all such information at your own risk. However, once we receive your transmission, we make our best effort to ensure its security on our systems. So as to enhance the security of your data, we have in place physical, electronic and managerial procedures to protect the information we collect online. However, as effective as these measures are, no security system is impenetrable. We cannot guarantee the security of our database, nor can we guarantee that the information you supply will not be intercepted while being transmitted to us over the Internet. We reserve the right to change this policy. Any changes to this policy will be posted to this page as soon as reasonably possible, so please check this page periodically. Acceptance of Privacy Statement Your use of our web site, including any dispute concerning privacy, is subject to this privacy statement and the Terms and Conditions of Service. BY USING OUR WEBSITE, YOU ARE ACCEPTING THE PRACTICES SET OUT IN THIS PRIVACY POLICY AND OUR TERMS AND CONDITIONS OF SERVICE. We reserve the right to modify this privacy statement at any time by posting the changes on this page. Your continued use of any portion of the Web site owner web site following posting of the updated privacy statement will constitute your acceptance of the changes.
Follow

Get every new post delivered to your Inbox.