Appeal No.	 EAT/856/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 2000

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR A D TUFFIN CBE

ORIGINAL CONCEPT MARKETING LTD	APPELLANT

MR R LIPTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR A MACKENZIE
(Legal Director)
Original Concept Marketing Ltd
2 High Street
Bagshot
Surrey
GU19 5AE	

JUDGE PETER CLARK

1	Following his dismissal by the Respondent Company, Original Concept Marketing Ltd, on 5 October 1999 the Applicant before the Reading Employment Tribunal, Mr Lipton, presented an Originating Application to the Tribunal by a letter dated 21 December 1999 received the next day, complaining of breach of contract and claiming one month’s pay in lieu of notice and 3 days outstanding pay, the latter strictly being a claim under section 13 of the Employment Rights Act 1996 .

2	On 7 January 2000 the Respondent  entered a Notice of Appearance.  In the grounds for resistance, at paragraphs 2 - 3, the Respondent said:-
“(2)  Following his dismissal and without authority the Applicant E-mailed confidential information of the Respondent to his home.  
(3)  The Applicant in performing an unauthorised operation destroyed the Respondent’s “ACT” sales database which, despite their best efforts, the Repondent has been unable to recover.”

3	On 27 March 2000 the Tribunal set a hearing date for this case to take place on 5 May.  On 26 April the Respondent wrote to the Tribunal saying this:-
“We refer to paragraph 3 of the respondent’s Notice of Appeal (sic) and should be grateful if you would note that it is the intention of the respondent at the hearing of this matter to invite the Tribunal to consider a claim for damages against the applicant for his breach of contract in destroying a database belonging to the respondent.  Such claim will be within the Tribunal’s award limit of £25,000.
Further details will be supplied prior to the hearing.”

4	Following a direction given by a Chairman, Mr J G Hollow, the matter came on for hearing on 5 May; that hearing took place before the Chairman sitting alone.  At the hearing Mr Mackenzie, appearing on behalf of the Respondent, sought leave to pursue an employer’s counter-claim.  The Chairman, we see from paragraph 4 of his summary reasons, promulgated on 30 May, was not satisfied, on the basis of the representations made to him, that the Notice of Appearance gave a clear indication of an intention to pursue an employer’s claim.  The Applicant had argued that it was wholly unclear to him that such a counter-claim was being mounted.  

5	In those circumstances, the Chairman refused permission to the Respondent to amend the Notice of Appearance to formally add a counter-claim, he not being satisfied that it was not reasonably practicable for the counter-claim to have been formulated within 6 weeks of the date within which the Respondent received, from the Tribunal, a copy of the Originating Application, for the purpose of Article 8 of the Extension of Jurisdiction Order 1994.  In those circumstances the matter proceeded and the Applicant succeeded to the extent of an award of £1,692.96.

6	This is an appeal by the Respondent below against the Chairman’s refusal to entertain the counter-claim.  The question for us is whether the Chairman’s finding that the Notice of Appearance did not give a clear indication of an intention to pursue an employer’s claim, is a permissible finding.  We bear in mind that our jurisdiction is limited to correcting errors of law; it is for the Appellant before us, to show that that finding was perverse, in the legal sense.  

7	Having considered the submissions made by Mr Mackenzie, we are unable to see any real prospect of that argument succeeding at a full hearing.  Although there is no authority to which we have been directed on the raising of a counter-claim in a Notice of Appearance, there is a wealth of authority on the question as to whether an Originating Application sufficiently raises, in the body of the complaint, a cause of action which it has subsequently sought to be added by way of amendment.  We bear in mind particularly the most recent Court of Appeal decision in Housing Corporation -v- Bryant [1999] ICR 123.  We are not persuaded that this appeal raises any arguable point of law and in those circumstances it must be dismissed.