Chancerygate (Business Centre) Ltd v. Jenkins (Rev 1)

Appeals against interim case-management decisions are exceptional, but intervention is justified where the decision is wrong in principle. The overriding objective requires a proper balance between expedition and the parties’ ability to have a fair trial. Relevant considerations include unresolved disclosure issues, continuity of instructed counsel, reasonable notice of a materially longer hearing, and the avoidable waste and expense caused by changing counsel immediately before trial. A tribunal should not penalise parties for seeking a postponement where they have complied with existing directions or agreed an alternative timetable. Where the evidence cannot fairly be tried because disclosure remains unresolved, postponement may be required, with a case management discussion used to address the disclosure dispute.

The parties were engaged in wrongful and unfair dismissal proceedings before the Watford Employment Tribunal. The hearing had been listed for two days. As the case developed, the evidence became substantial and the claimant maintained that he could not properly prepare without further disclosure.

The parties jointly sought a postponement. Regional Employment Judge Gay instead directed that the hearing should proceed for up to six days. Both parties appealed urgently, objecting to the increased listing and the resulting difficulty of retaining their instructed counsel. The central issue was whether that case-management decision properly applied the overriding objective.

1. The appeals were allowed. The order requiring the case to be listed for up to six days immediately before trial was set aside, and the hearing was postponed.
2. Although appeals against interim case-management decisions should be rare, intervention is available where the decision is wrong in principle. The Tribunal referred to the approach in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 and to the example of CIBC v Beck [2009] IRLR 740.
3. The Regional Employment Judge had failed properly to balance the overriding objective. Expedition was important, particularly given the age of the dismissal claim, but it had been given precedence over the parties’ responsible joint application and their entitlement to a fair trial with proper disclosure.
4. Continuity of counsel was a material practical consideration. The additional four days imposed shortly before trial would have required both parties to incur substantial expense in instructing new counsel, with little opportunity for the new representatives to understand the case and establish confidence with their clients. The parties had also been entitled to notice of the new listing under the applicable rules.
5. The unresolved disclosure issue meant that it was unfair to proceed with the trial. A case management discussion should be arranged promptly to address disclosure, using the newly available Tribunal time, so that the case could thereafter be listed for hearing as soon as practicable.

The judgment states that the appeals arose from case-management decisions made by Regional Employment Judge Gay at Watford Employment Tribunal. The Employment Appeal Tribunal, sitting alone, allowed the appeals and set aside the direction for a hearing of up to six days.