Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17
Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong."
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Jhuti v Royal Mail Group (Secretary of State for Business, Energy and Industrial Strategy and another intervening)
2017 June 14;
Simler J (President)
Industrial relations— Employment tribunals— Litigation friend— Claimant without mental capacity to participate in litigation— Whether employment tribunal having power to appoint litigation friend— Employment Tribunals Act 1996 (c 17), s 7 — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), Sch 1, rr 2, 29
Before a remedy hearing and following the claimant’s successful complaint of unfair dismissal, her solicitor, who was concerned about her mental capacity to litigate, applied for a named individual to be appointed as her litigation friend. At a preliminary hearing before an employment judge, where it was agreed that there was unchallenged evidence that she did not have the mental capacity to participate in litigation, the application was refused on the ground that under the Employment Tribunals Rules of Procedure 2013, made under the authority of the Employment Tribunals Act 1996, the tribunal had no power to appoint a litigation friend.
On an appeal by the claimant—
Held, appeal allowed. There was no express power in the Employment Tribunals Act 1996 to provide rules for the appointment of litigation friends but, just as broad general powers in other enabling legislation had been construed so as to authorise their appointment, the wide drafting of section 7(1), which permitted the regulation of any aspect of employment tribunals as appeared necessary or expedient, provided the power to make rules which enabled the appointment of a litigation friend for people who lacked capacity to conduct litigation. Although a litigation friend had wide authority to deal with a party’s legal rights in the way litigation was conducted, the appointment was a procedural matter not a matter of substance and came under the Employment Tribunals Rules of Procedure 2013, rule 29 of which empowered tribunals to make case management orders at any stage of the proceedings, whether on their own initiative or on the application of the parties, and included any order or decision in relation to the conduct of the proceedings. To continue with a hearing with an unrepresented litigant who lacked mental capacity flew in the face of the overriding objective in rule 2 that tribunals should deal with cases fairly and justly and put parties on an even footing. It would also be incompatible with the common law duty of fairness and the strong interpretive obligation in section 3 of the Human Rights Act 1998 to read section 7(1) of the 1996 Act or rule 29 of the 2013 Rules as not empowering employment tribunals to appoint a litigation friend where issues of representation or participation were raised, and it would be contrary to the rule of law if access to courts and tribunals was restricted without explicit wording to that effect (paras 14–15, 21–23, 25, 27, 40).
Johnson v Edwardian International Hotels Ltd (unreported) 2 April 2008, EAT not followed
Guidance given on the appointment of a litigation friend (para 39).
Matthew Jackson and Simao Paxi-Cato (instructed by Net Solicitors, Ashford) for the claimant.
Tom Poole (instructed by Government Legal Department Employment Group) for the respondent and the Secretary of State and the Law Society, intervening.
Reported by: Jennifer Winch, Barrister.