Bournemouth Borough Council v Leadbeater

An application to revoke a default judgment may contain an implied, rather than express, request for an extension of time to present a response. The tribunal must discern the substance of the application.

In deciding whether to revoke a default judgment under rule 33 of the Employment Tribunal Rules of Procedure 2004, the tribunal must consider the matters in rules 33(5) and (6), together with the broader principles in Kwik Save Stores Ltd v Swain. Relevant considerations include the reason for delay, the merits of the proposed response, and the prejudice to each party. The overriding objective requires a decision that is fair and just.

The respondent brought an unfair dismissal claim. The appellant failed to present a response, and a default judgment was entered.

The appellant applied for review or revocation and enclosed a proposed response. Its solicitors stated that the response had not been presented in time because the appellant had no knowledge of the claim, and asked that the default judgment be set aside and the response accepted.

The Employment Judge refused the application, finding that it did not include the mandatory application for an extension of time under rule 33(2) of the Employment Tribunal Rules of Procedure 2004. The central issues were whether the letter contained an implied extension application and what principles governed revocation of the default judgment.

1. Appeal allowed. The default judgment dated 12 November 2009 was revoked. Time for presenting the response was extended to 14 days from the judgment date, and the case was remitted to the Employment Tribunal for directions.
2. The letter of 18 January 2010 contained an implied application for an extension of time. The solicitors expressly asked the tribunal to accept the response, which was enclosed with the letter. Rule 33(2) required an application, but did not require it to be expressed in any particular form. The Employment Judge should have considered whether such a request could be discerned from the application.
3. The authorities require Employment Tribunals to adopt a flexible approach to procedural rules where necessary to avoid injustice. An erroneous description or rule reference should not obscure the substantive application. The approach in D & H Travel Ltd and Another v Foster was applied, and the decisions in American E-Z Self Storage Limited v Prince and Jarretts Motors Ltd v Wells supported that approach.
4. Rules 33(5) and (6) did not state the exclusive matters relevant to revocation. The principles in Kwik Save Stores Ltd v Swain, as confirmed in Moroak (trading as Blakes Envelopes) v Crombie and Pendragon plc (trading as CD Bramall Bradford) v Copus, remained applicable. The tribunal had to consider the reason for delay, the reasonable prospects of successfully responding, all relevant prejudice, and whether the result was objectively justified on grounds of reason and justice. KLTC Construction Ltd v Swain confirmed that this approach continued after the amendment to the rules.
5. The response appeared to disclose a reasonable defence. The failure to respond was treated as an accidental oversight or genuine misunderstanding, not an intentional default. The prejudice to the appellant from maintaining the default judgment was considerable, while the respondent would lose a judgment to which she might not be entitled. Revocation was therefore justified.

• Employment Tribunal: Employment Judge Warren refused to review or revoke the default judgment, holding that the application did not comply with rule 33(2) of the Employment Tribunal Rules of Procedure 2004.
• Employment Appeal Tribunal: The appeal was allowed. The default judgment was revoked, time for presenting the response was extended, and the proceedings were remitted for directions.