Chukwudebelu v Chubb Security Personnel Ltd.

An unless order must be construed by reference to the appeal or issue to which it relates. A failure to comply with an order directed only to particular grounds does not, without more, dismiss unrelated grounds of appeal. That construction is reinforced by proportionality: debarring a party from pursuing defaulting grounds is materially different from debarring unrelated grounds.

An unless order takes effect automatically upon non-compliance and does not require a further order. Its severe sanction should be imposed only where its consequences are justified, and the fact that the order is conditional must be clearly brought home to the affected party.

The appellant’s employment tribunal claims for unfair dismissal, race discrimination, victimisation and unauthorised deductions from wages were dismissed. On appeal, the Employment Appeal Tribunal granted permission for some grounds to proceed, including Grounds 4 and 11 concerning unauthorised deductions, and separately directed that the other nine grounds be considered at a preliminary hearing.

An unless order required further information and documents for Grounds 4 and 11 within 14 days, failing which the appeal would be dismissed. After non-compliance, the Registrar refused an extension of time. HHJ Reid dismissed the appeal against that refusal and treated the whole EAT appeal as dismissed. The central issues were the scope of the unless order and whether the refusal to extend time involved an error of law.

1. Disposition. The appeal was allowed in part. The dismissal of Grounds 4 and 11 was upheld, but the other nine grounds were unaffected by the unless order and were to proceed to a preliminary hearing.
2. Construction of the order. Maurice Kay LJ held that the first order made by HHJ McMullen QC dealt exclusively with Grounds 4 and 11. References in that order to “this appeal” and “the appeal” meant the appeal concerning those grounds. HHJ Reid therefore erred in construing the unless order as dismissing the entire appeal.
3. Proportionality. Independently, it was disproportionate to debar the appellant from pursuing grounds which were not the subject of the procedural default. The nine other grounds were covered by a separate order directing a preliminary hearing.
4. Grounds 4 and 11. No error of law was shown in HHJ Reid’s decision to uphold the Registrar’s refusal to extend time. The material before him justified the conclusion that the appellant’s solicitor knew that further documentation was required within 14 days and knew that a hearing had been fixed for 13 April 2007. The additional witness material was not before HHJ Reid and was not admitted on the appeal; in any event, it was not wholly favourable to the appellant.
5. Unless orders. Pill LJ added that an unless order takes effect on non-compliance without a further order. Agreeing with Marcan Shipping (London) Ltd v Kefalas & Anr