Camden Federation Of Tenants & Residents Association v Hayward

A late application to review a default judgment that is otherwise compliant with rule 33(2) must be treated as a properly constituted application for which an extension of time may be sought, including by implication. An Employment Tribunal must then exercise its discretion. It must consider the explanation for delay, the parties’ prejudice and the merits, rather than treating the original defective application as removing all discretion.

The fact that an ET1 was sent but not received does not establish that it was not sent. It may, however, provide a good reason for the initial failure to respond and is relevant to the discretionary review exercise.

The Claimant brought a second Employment Tribunal claim after her dismissal. The Tribunal sent the ET1 to the Respondent, but found that it was not received. Default judgment was entered when no ET3 was filed.

The Respondent’s first review application was late and did not include a proposed response. A further application, submitted the evening before the review hearing, included a response but was also late. The Employment Judge refused review on the basis that rule 33(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 gave no discretion.

The Respondent appealed. The central issue was whether the later compliant application required the Tribunal to exercise its discretion to extend time and review the default judgment.

1. Appeal allowed. The Employment Judge erred in law by treating the first, defective review application as conclusive and holding that rule 33(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 left no discretion.

2. Rules 2 and 4 focus on the sending of the ET1 by the Tribunal, not its receipt by the respondent. The Tribunal had found that the ET1 was sent. Its non-receipt did not establish the contrary, but could supply a good reason for the original failure to submit a response.

3. Rule 33(2) is mandatory as to the contents of a review application. The first application was therefore defective and late because it lacked a response. However, the later application, whether characterised as a second application or an amendment, included a response and otherwise complied with rule 33(2). It was a properly constituted but late application.

4. The Tribunal should have considered whether that application contained an implied request for an extension of time, consistently with Bournemouth BC v Leadbeter. It was then required to exercise a broad discretion. Applying Kwik Save Stores Ltd v Swain & Ors, it had to weigh the explanation for delay, the respective prejudice to the parties and the merits of the proposed response. Rule 33(6) makes the explanation a mandatory consideration but does not exhaust the relevant factors.

5. The EAT could not conclude that the application would inevitably have failed. The proposed response was not found to be without merit, and the necessary balancing exercise had not been performed. The matter was remitted for a fresh hearing before any Employment Judge.

• Employment Appeal Tribunal: Allowed the Respondent’s appeal and remitted the review application for a fresh hearing before any Employment Judge.
• London (Central) Employment Tribunal: Employment Judge Charlton refused the Respondent’s application to review default judgment, in reasons sent on 13 November 2012.