A1/1999/7750
Neutral Citation Number: [2001] EWCA Civ 163 	   
IN THE COURT OF APPEAL (CIVIL DIVISION)	
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL 

The Royal Courts of Justice
The Strand
London WC2A
 
	Friday 2 February 2001
Before:

LORD JUSTICE MUMMERY

LORD JUSTICE RIX

MR JUSTICE HOLMAN

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Between:

SUE SUCH
Appellant/Applicant
and:

TRANSPORT & GENERAL WORKERS UNION
Respondent/Respondent

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel:  020 7404 1400
Official Shorthandwriters to the Court
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MR KELLY (instructed by Ratcliffe Duce & Gammer, 49 & 51 London Street, Reading) appeared on behalf of the Appellant

The Respondent did not appear and was not represented

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JUDGMENT
	Friday 2 February 2001
1.	LORD JUSTICE MUMMERY: This is an adjourned hearing of applications to appeal and for an extension of time. When the applications came before me on 5 July 2000, I directed that the application should be heard on notice by a full court, with the appeal to follow if permission is granted. I indicated that the permission sought should relate to the two grounds identified in the notice of appeal from the order of the President of the Employment Appeal Tribunal on 22 January 1999.
2.	At a preliminary hearing, Morison J (the then President) dismissed an appeal by Mrs Such against the decision of the Employment Tribunal. She claimed that she had been the subject of unjustifiable discipline, sex discrimination, victimisation and breach of contract. The appeal was dismissed on the basis that the Employment Appeal Tribunal was unable to identify any error of law in the Employment Tribunal's decision.
3.	On 5 July 2000, Mrs Such, who had previously acted in person before the Employment Tribunal and the Appeal Tribunal, was represented by Ms Brooks on a no fee basis. I shall bear that in mind when considering an application for today's hearing to be adjourned for a period of six weeks. Mrs Such is today represented by Mr Kelly of counsel.
4.	The application for adjournment was first made to me at the end of last week. It was refused. Mrs Such then wrote to me, reiterating her need for an adjournment. She was informed that the matter could be mentioned before the full court when the case was called on today.
5.	The basis on which Mr Kelly makes the application is that his client has now obtained funding for her proposed appeal. That funding is to be made available by her present employer, the GMB Union. It is her intention to be represented by counsel. Mr Kelly is not the counsel of first choice. It was indicated in a letter dated 25 January 2000 to the Civil Appeals Office from Mrs Such's solicitors, Ratcliffe Duce & Gammer, that counsel first instructed by Mrs Such was unable to handle the matter because he had previously advised the Transport & General Workers Union in relation to the claims which Mrs Such brought against them. He had had to return the papers. Mrs Such then wished to be represented by another member of the same chambers who has appropriate specialist knowledge and experience, Mr Andrew Thompson. It is explained in the letter that, owing to prior court commitments, Mr Thompson was unable to give sufficient time to the proper preparation of the case between the end of last week and today. 
6.	Mr Kelly informs us that he was instructed in this matter only on Wednesday. Yesterday, Thursday, he had court commitments. He has had only a limited time in which to consider the matter. Owing to health problems on the part of Mrs Such, he has been unable to have a conference with her. There were doubts as to whether she would be in a fit state to attend the hearing today, although she has attended. Mr Kelly rightly points out that, as appears from the appeal bundle, there is a large amount of information relevant to these proceedings which has to be looked at, even if it is not used for the purposes of the applications and any appeal which follows. For his own purposes he has attempted to prepare a skeleton argument identifying possible grounds of appeal, but he does not have instructions from his client to show that to the court to assist in deciding the application for adjournment. Mr Kelly feels that he has not had time to get to grips with this long‑running case. He would find it difficult to do justice to it in the conditions under which he has been instructed. 
7.	The decision of the Employment Tribunal, in which it is said that there are errors of law, was given with extended reasons over three years ago. The appeal before the Employment Appeal Tribunal was heard over two years ago. The aim is to bring appeals from that Tribunal to this court within a year. It does no good to users of the system, whether they be Mrs Such or other people, to have appeals adjourned, leading to substantial delays between the decision under appeal and the decision of this court. This case has been previously adjourned. The court should be reluctant to accede to this application.
8.	However, this case has two unusual features which persuade me that the appeal should be adjourned, on terms, for a period of six weeks. The first is that, following the hearing of 5 July 2000, the Transport & General Workers Union's Legal Director wrote to the Civil Appeals Office on 18 September, saying this:
“. . . I wish to make it clear that this union does not concede any part of the applicant's case. It is our view that her appeal stands no chance of success. The union notes that the applicant has not obtained public funding of her appeal. This is according to the letter dated the 8th September from her solicitors, Ratcliffe Duce & Gammer - copy enclosed. 
We do not wish to show any disrespect to the Court but in the circumstances the union will not take any further action in this matter.”
9.	I should make clear that that letter was written with knowledge of the direction that the application for permission to appeal should be on notice before a full court, with appeal to follow if permission is granted. In those special circumstances, any adjournment cannot possibly prejudice the respondent union, which has opted out of these proceedings in this court. It would be a different matter if the union were participating in the appeal and had attended to object to yet further delay. 
10.	The second unusual feature is that Mr Kelly has been instructed in circumstances which must make it difficult for him to give as much assistance to the court as could be given by counsel who had had more time in which to discuss the matter with the client, to give advice and, in the light of that advice, to prepare any necessary skeleton argument and make oral submissions to the court. I would regard it as in the interests of justice that the case should be adjourned, so that counsel fully instructed can make submissions to the court.
11.	I adjourn this matter for six weeks on the basis that, within four weeks of today, counsel submits a skeleton argument to the court. That skeleton argument should focus on the main point taken by Mrs Such in her own detailed skeleton argument, namely the alleged exclusion of relevant evidence by the Employment Tribunal in determining her various claims. It would be particularly helpful to the court to have attached to the skeleton argument the evidential material which it is alleged was excluded from consideration by the Tribunal, and any material relied upon to show how it was excluded and why. The skeleton argument should link the alleged excluded material to relevant issues in the case and identify how that material was so relevant to the issues that it would have had an impact on the outcome of the Employment Tribunal's consideration of Mrs Such's complaint. 
12.	On that basis, and for those reasons, I would adjourn this appeal for six weeks, on terms that a skeleton argument settled by counsel is to be lodged with this court within four weeks. 
13.	LORD JUSTICE RIX: I agree.
14.	MR JUSTICE HOLMAN: I also agree.
ORDER: Applications allowed, on terms that a skeleton argument settled by counsel is to be filed with this court within four weeks. Time estimate of half a day, including judgment.
(Order not part of approved judgment)