There is an established legal principle that if the representative of one or other of the parties in a claim does not do their job properly, it will not generally constitute grounds for review of a tribunal decision. In Phipps v Priory Education Services (PES) Ltd, the Court of Appeal has made clear that although the general rule still constitutes good law, it should not be interpreted by tribunals as though it were a blanket ban.
Basic facts
After being dismissed, Ms Phipps lodged a tribunal claim form citing Mr Christopher Johnstone of One Assist Legal Services (OALS) as her representative. It was clearly stated on the form that the tribunal would only contact him from then on.
Shortly before the hearing was due to take place, Mr Johnstone applied for and was granted an adjournment following an alleged medical emergency. After failing to comply with an instruction to provide the medical evidence showing that he had been unfit to attend, the tribunal issued a warning that it would strike out the case if he did not respond to the instruction. After a further two warnings, the tribunal struck out the claim.
PES then applied for costs against Ms Phipps as well as a wasted costs order against Mr Johnstone. Ms Phipps applied for reconsideration of the decision to strike out her claim, arguing that she had only become aware of the situation when she received the judgment. She said that the company had not told her about the warnings, nor their failure to respond to them.
Tribunal and EAT decisions
Following the decision in Lindsay v Ironsides Ray and Vials, the tribunal held that it would not allow the reconsideration request on the basis that the “failings of a party’s representative [do] not generally constitute grounds for review”. However, it made the wasted costs order against OALS Ltd because it had acted “improperly, unreasonably and negligently”.
The EAT dismissed the appeal, holding that Ms Phipps had an alternative remedy to reconsideration that she could pursue which was to make a claim for damages for professional negligence against OALS Ltd. This approach was endorsed by the tribunal’s findings and the wasted costs order it had made.
Ms Phipps appealed again, arguing that given the exceptional circumstances of her situation, the tribunal should have set aside the general rule that failings of a party’s representative do not generally constitute grounds for review.
Court of Appeal decision
Allowing the appeal, the court held that although the general rule still constituted good law, it was not a blanket ban. In circumstances such as these where the claimant had not had a fair opportunity to present her case, the approach should be modified so that the case could be dealt with by reconsideration. To decide otherwise would constitute a significant procedural shortcoming.
The court also dismissed the idea that Ms Phipps could start a claim of negligence against OALS Ltd. Firstly, it was unlikely that she would find a lawyer willing to act on a conditional fee basis, not least because there was so little evidence to assess her prospects of success; and secondly, it was unlikely that the company would be “good for the money”.
Although cases should be decided in accordance with recognised principles, the court emphasised that tribunals still have some discretion. It, therefore, concluded that the reconsideration application should have been allowed in this case in the interests of justice, given the specific circumstances.