Kuttapan v London Borough Of Croydon: Clarifying the Commencement of Time Periods for Deposit Payments under Rule 7(7)

Introduction

Kuttapan v. London Borough Of Croydon & Ors ([1998] UKEAT 268_98_1712) is a pivotal case adjudicated by the United Kingdom Employment Appeal Tribunal on December 17, 1998. The appellant, Mr. Kuttapan, initiated proceedings against the London Borough of Croydon alleging racial discrimination and wrongful dismissal. Central to the dispute was the procedural handling of a deposit payment required by the tribunal, leading to the strike-out of Mr. Kuttapan's claims. This commentary delves into the intricate procedural issues addressed in the Judgment and the legal principles established therein.

Summary of the Judgment

Mr. Kuttapan filed an Originating Application alleging racial discrimination and breach of contract against the London Borough of Croydon. The tribunal directed a pre-hearing review (PHR), during which it ordered Mr. Kuttapan to pay a deposit of £150 as a condition for proceeding with the race discrimination claim. The appellant contended that the tribunal incorrectly calculated the deadline for the deposit payment, leading to an erroneous strike-out of his application. Upon appeal, the Employment Appeal Tribunal scrutinized the procedural errors and the interpretation of Rule 7(7) concerning the timing and nature of the deposit payment.

Analysis

Precedents Cited

The Judgment references several key cases that influenced the tribunal's decision:

Immigration Advisory Service v Oommen [1997]: Interpreted the commencement of the time period for payments based on the date of receipt rather than dispatch.
Belshaw v Bush [Cases] and Currie v Misa [Cases]: Established that a cheque or bill is considered payment upon issuance, treating it as cash.
Fielding & Platt Ltd v Selim Najjar [1969]: Reinforced the notion that bills of exchange are treated akin to cash transactions.
Casella London Ltd v Banai [1990]: Clarified that certain striking out orders were not reviewable as they were deemed interlocutory.
Nikitas v Solihull Council [1986]: Highlighted the tribunal's inherent power to revoke erroneous orders.

Legal Reasoning

The core legal issue revolved around the interpretation of Rule 7(7) of the Employment Tribunal Rules of Procedure 1993, particularly concerning:

Commencement of Time: The tribunal misapplied the start date for the 21-day payment period, using the dispatch date instead of the receipt date, contrary to Immigration Advisory Service v Oommen.
Meaning of 'Pay': The court elucidated that 'pay' encompasses the issuance of a cheque, which constitutes payment even before clearance, aligning with principles from Belshaw v Bush and Currie v Misa.
Reviewability of Strike-Out Orders: It was determined that strike-out orders under Rule 7(7) are not 'decisions' per Regulation 2(2) and thus not subject to review under Rule 11, based on Casella London Ltd v Banai.
Tribunal's Power to Revoke: Despite the restrictive interpretation of 'decisions,' the tribunal holds the power under Rule 16(1) to set aside or revoke erroneous orders, supported by Nikitas v Solihull Council.

Impact

This Judgment has significant implications for future tribunal proceedings:

Timing of Payments: Clarifies that the 21-day period for deposit payments begins upon receipt, not dispatch, ensuring procedural fairness.
Interpretation of Procedural Rules: Emphasizes the importance of precise language in procedural rules, particularly the distinction between 'pay' and 'remit.'
Tribunal's Procedural Flexibility: Affirms the tribunal's authority to correct procedural errors and revoke unjust orders, thereby safeguarding litigants' rights.
Reviewability of Orders: Distinguishes between different types of orders regarding their susceptibility to review, influencing how tribunals manage strike-out applications.

Complex Concepts Simplified

Pre-Hearing Review (PHR)

            A PHR is a preliminary meeting before the full tribunal hearing where procedural matters, such as the necessity of a deposit, are addressed to streamline the main hearing.
        

Rule 7(7) Explained

            Rule 7(7) allows the tribunal to order a party to pay a deposit if their case appears to lack merit. The party must pay within 21 days of receiving the order, failing which the application may be struck out.
        

Strike-Out Order

            This is an order by the tribunal to dismiss an application entirely due to procedural failures, such as not paying the required deposit on time.
        

Deemed Service

            Refers to the legal assumption that a document sent by post is received by the recipient after a certain period, typically two working days for first-class mail, unless proven otherwise.
        

Conclusion

The Kuttapan v. London Borough Of Croydon Judgment underscores the necessity for tribunals to adhere meticulously to procedural timelines and interpret rules with precision. By affirming that the commencement of the payment period is based on the receipt date and not the dispatch date, the court ensured equitable treatment of litigants. Additionally, the clarification that strike-out orders under Rule 7(7) are not inherently reviewable yet can be revoked through the tribunal's discretionary powers provides a balanced approach between procedural efficiency and fairness. This case serves as a crucial reference point for both tribunals and litigants in navigating procedural requirements and safeguarding their legal rights.