Royal Embassy of Saudi Arabia (Cultural Bureau) v Antoinette Costantine

An appellate court may dismiss an appeal where the appellant intentionally fails to attend and is not represented, particularly after having clear notice and ample opportunity to arrange representation.

An adjournment is not automatically justified because solicitors have ceased to act following non-payment. The court may consider prejudice caused by delay and whether the appellant’s predicament was avoidable. Responsibility is assessed by reference to the appellant institution, rather than an individual staff member lacking legal expertise.

The claimant, an administrative employee of the appellant, brought Employment Tribunal proceedings alleging discrimination and harassment under Part 5 of the Equality Act 2010. The appellant claimed state immunity under sections 4 and 16 of the State Immunity Act 1978. Employment Judge Brown rejected that claim, and the Employment Appeal Tribunal upheld the decision.

The appellant appealed to the Court of Appeal. Its solicitors ceased to act after prolonged non-payment of fees. The appellant sought a delay by email but made no formal adjournment application, filed no supporting evidence and did not attend the hearing. The central issue was whether the appeal should be adjourned or dismissed for non-appearance.

Underhill LJ gave the judgment of the court. Newey LJ and Warby LJ agreed.

1. Disposition. The appeal was dismissed. The appellant’s non-appearance was intentional. It had no legal representative present, and the court was entitled to dismiss the appeal in those circumstances.
2. Adjournment. Although no formal application or supporting evidence was before the court, the court reviewed the circumstances and concluded that an adjournment would have been refused. The claimant had already waited more than six years for a hearing. Further delay would probably have postponed the Employment Tribunal hearing for many months, potentially into 2025, and might have left only the personal-injury aspect of the claim proceeding while the immunity issue remained unresolved.
3. Responsibility for representation. The appellant had known for months that its solicitors intended to cease acting and had received notice of the formal application more than three weeks before the appeal. It therefore had ample time either to pay its solicitors or to instruct alternative lawyers. Financial and administrative difficulties, and the lack of legal expertise or authority of an individual embassy employee, did not excuse the institution’s failure to secure representation.
4. Underlying immunity issue. The court did not determine the construction or application of sections 4 and 16 of the State Immunity Act 1978. It noted that, so far as the claim concerned personal injury caused by discrimination and harassment, immunity appeared unavailable under section 5. That observation was not finally determinative.

• Court of Appeal (Civil Division): On 13 March 2024, the appeal was dismissed for the appellant’s intentional non-appearance.
• Employment Appeal Tribunal: The appeal was initially rejected on the papers under rule 3(7) of the Employment Appeal Tribunal Rules 1993 and that decision was affirmed by His Honour Judge Barklem on 23 November 2022.
• Employment Tribunal: Employment Judge Brown held in a decision sent on 30 June 2021 that the appellant did not enjoy state immunity in respect of the claim.