Edem v Ajilon (UK) Ltd & Anor

Interlocutory appeals should be managed alongside any substantive appeal where their relevance depends on the outcome of an impending strike-out decision. A stay matching the applicable appeal period, and restoration to the same judge, may be sensible case management. A direction for consideration on the papers does not, without more, remove the applicant’s right to an oral hearing on the merits. Permission to appeal was refused where the challenged orders were procedural directions and no arguable error of law was identified.

Mr Edem brought proceedings against Ajilon UK Ltd and Fujitsu Services Ltd. The Employment Tribunal later struck out his claims for having no reasonable prospects and for vexatious and abusive conduct. Before the written reasons were promulgated, the Employment Appeal Tribunal made two orders staying and managing Mr Edem’s interlocutory appeals. He renewed applications for permission to appeal against those orders. The central issues were whether the stay and direction for consideration on the papers improperly restricted his right to an oral hearing, and whether there was an arguable error of law in the EAT’s case management decisions.

1. Outcome. Lord Justice Rix refused both renewed applications for permission to appeal. The merits of the underlying claims and interlocutory appeals were not before the court.
2. The EAT was entitled to adjourn and stay the two interlocutory appeals for 42 days from promulgation of the Employment Tribunal’s written reasons. The period corresponded with the time available to appeal the strike-out decision. The approach protected Mr Edem’s appeal rights and promoted sensible case management.
3. If the claims had been struck out and no appeal had followed, there would have been nothing for the interlocutory appeals to address. If an appeal followed, it was undesirable to consider the interlocutory matters separately from the substantive appeal. The EAT was therefore entitled to arrange for related matters to return to the same judge.
4. The direction that the Rule 3(10) application be restored for consideration on the papers did not deprive Mr Edem of an oral hearing. Read in context, it provided an efficient route for deciding what further directions were required after the stay. Mr Edem would retain the opportunity to present his case at an oral hearing on the merits.
5. An appeal against interlocutory case management decisions required an error of law, which could be difficult to establish. The EAT’s directions were sensible in the circumstances, and there was no proper basis for permission to appeal.

• Employment Appeal Tribunal: On 24 January 2007 HHJ McMullen QC stayed and managed two interlocutory appeals pending the outcome and appeal period relating to the Employment Tribunal’s strike-out decision.
• Court of Appeal (Civil Division): Refused both renewed applications for permission to appeal against the EAT’s case management orders.