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
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
For these reasons I consider that the appeal should be allowed and the judgment dated 11 June 2008 will be set aside.
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.
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.