Neckles v Yorkshire Rider Ltd

Under CPR 52.9, the Court of Appeal may strike out an appeal notice and set aside permission to appeal only where there is a compelling reason. An appeal rendered purely academic because the underlying proceedings have been struck out satisfies that threshold. The scope of a strike-out is determined from the tribunal’s operative decision read in context. Where the decision strikes out the complaint or proceedings in the relevant case, and the finding of scandalous conduct is not confined to one complaint, the whole originating application may be treated as struck out. General reliance on Article 6 does not prevent the procedural order where it offers no answer to the application.

Yorkshire Rider Ltd applied to terminate Francis Neckles’s permitted appeal concerning an Employment Tribunal complaint. The complaint alleged direct racial discrimination in grading and pay, and victimisation arising from the employer’s refusal to comply with a reinstatement order. The Tribunal dismissed the discrimination complaint as out of time but allowed the victimisation complaint to proceed. A later application alleging scandalous conduct succeeded, and the Employment Appeal Tribunal dismissed the appeal against that strike-out.

Permission to appeal the later decision was refused. The central issue was whether the later strike-out covered the whole originating application and, if so, whether the resulting academic nature of the first appeal was a compelling reason under CPR 52.9 to strike out the appeal notice and set aside permission.

Application allowed. Lord Justice Peter Gibson held that the employer had established a compelling reason under CPR 52.9 to terminate the permitted appeal.

1. CPR 52.9 gives the Court of Appeal power to strike out the whole or part of an appeal notice and to set aside permission to appeal. Those powers may be exercised only where there is a compelling reason.
2. The Employment Tribunal’s actual decision, read in context, governed the scope of its order. Although the employer’s solicitors’ letter had been imperfectly drafted, the Tribunal stated that the complaint in the relevant case was struck out because the proceedings had been conducted scandalously. Its reasoning referred to striking out the proceedings generally. The Employment Appeal Tribunal likewise treated the order as striking out the appellant’s action. The order therefore extended to the whole originating application, rather than only the victimisation complaint.
3. Permission to appeal the later strike-out decision had been refused, with no further appeal available. The appeal concerning the earlier limitation decision would consequently serve no practical purpose. Its purely academic character constituted the compelling reason required by CPR 52.9.
4. The respondent’s suggested rights under Article 6 of the European Convention on Human Rights did not assist on this procedural application.

The appeal notice was struck out and permission to appeal was set aside in whole. Costs were summarily assessed at £10,000, payable within 28 days.

1. Court of Appeal (Civil Division): On 19 July 2002, the application to strike out the appeal notice and set aside permission to appeal was allowed, with costs. [2002] EWCA Civ 1156
2. Court of Appeal (Civil Division): Pill LJ granted permission to appeal concerning the first application on 1 November 2001, but refused permission to appeal concerning the later strike-out on 10 April 2002.
3. Employment Appeal Tribunal: The appeal against the later strike-out was dismissed on 18 January 2002. The earlier appeal was dismissed on 1 February 2001.
4. Employment Tribunal: On 9 March 2000, the direct racial discrimination complaint was dismissed as out of time, while the victimisation complaint was allowed to proceed. The later application to strike out for scandalous conduct succeeded, with the decision promulgated on 25 September 2001.