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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Batty v BSB Holdings (Cudworth) Ltd [2001] EWCA Civ 1969 (5 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1969.html Cite as: [2001] EWCA Civ 1969

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL A
STAY OF EXECUTION PERMISSION TO RELY
ON FURTHER EVIDENCE AND DISCLOSURE

		Royal Courts of Justice Strand London WC2 Monday, 5th November 2001

1. LORD JUSTICE WARD: This is an application by Mr Batty for permission to appeal against the order made by Mr Recorder Keily on 17th July 2001 when he dismissed Mr Batty's claim for wrongful dismissal from his employment with BSB Holdings (Cudworth) Ltd.
2. I have decided that I am in such a state of unease about this case that it would be right to adjourn it on notice to the respondent for further argument as to whether or not permission to appeal should be given. I will so adjourn it and direct that it be heard before two Lords Justices on the adjourned hearing with the appeal to follow. I shall not express each and every point of unease but principally my anxieties and need for clarification relate to several findings of fact which may have been central to the eventual conclusion.
3. The first relates to the recorder's finding at page 7 of his judgment (page 31 of bundle) that -

"In fact even though he had not received actual notice of the contents of the April 19th letter he had by the weekend become informally aware of enough of its contents sufficient to alert him to the possibility that the end of his period of suspension could be in sight. Had he been truly anxious to return I cannot picture him sitting quietly by. He would, I am sure, have rung somebody at the company to find out what was happening ..... That he did nothing of the sort at that stage strongly suggests to me that by then he had no intention of returning."

4. Mr Batty points out that the judge had earlier recorded that he gave evidence that on his return from a holiday in America he had been met at the airport by his daughter Samantha. That was Mr Batty's evidence. He seeks now to persuade the Court of Appeal to allow fresh evidence to show that he was mistaken. I have very little confidence in that application being successful because the judge relied on his own evidence and he was best placed to have checked it before he gave it in evidence. The judge went on to say on page 6 of the judgment:

"He told me in evidence that she (Samantha) had told him later (he did not say how much later) that he was expected back at work on 17th May ..... "

5. Mr Batty points to the transcript of evidence for 11th May (at page 5 A and E), that his daughter told him on the Tuesday or Wednesday that he would be required back at work and, more particularly, that she told him on 18th or 19th, that is to say, after he was expected back at work. It may be that the judge misunderstood the evidence.
6. A second possibility explaining the judge's failure to understand correctly all Mr Batty was saying comes in an exchange between the judge and the witness, Mr Batty, who is hard of hearing. There was a passage at page 8 B of the transcript of 11th May where his deafness is recognised and at another passage on page 54 D-E this exchange takes place:

"A. One of the first things he (Smith) said to me was that I was not going to work for him again.

MR RECORDER KEILY: I cannot hear you.

A. I was not going to work for him again.

Q. "I was not going to work".

7. A. I was not going to work for BSB again."
8. Mr Batty's point is that the judge may have assumed the answer to be that he Mr Batty was not prepared to go back to work when he was saying the very opposite of that, namely that Mr Smith did not want him back at work which is his case.
9. The third challenge of fact relates to the judge's finding on page 11 of his judgment:

"The effect of all of this is that I am satisfied that certainly by the end of May Mr Batty knew that he was being called into work and was refusing to attend. That finding of fact is crucial to the decision in the case."

10. Mr Batty attacks that as being quite inconsistent with the facts. The judge accepted that the letter of 24th May sent by Mr Izzard to the solicitors Jack Danaha & Co (page 247 of the trial bundle) stated that -

"The absence of any contact whatsoever is of concern and the company is not prepared to continue with making payment of any salary and other financial considerations beyond the end of this month until all matters are satisfactorily resolved."

11. The judge found that the solicitors had received that letter but the judge was equally satisfied that it had not been passed on to Mr Batty. Therefore the argument is that the judge is attributing actual knowledge to Mr Batty which, on the facts, he had found he did not possess.
12. There is a detailed skeleton argument put in by Mr Batty and a supplementary skeleton argument also submitted by him. The upshot of it is that in the light of those documents I would wish the respondent to help the court to show that there is no merit in the points there being advanced. In a nutshell, Mr Batty's case is that there was no way in which he was not going to go back to work if work was available to him and was being offered to him. He submits that his whole demeanour is consistent with that and those are the inferences the judge ought to have drawn from the totality of the evidence. I will give him this further chance to establish those facts and therefore I will adjourn the matter, as I have already indicated.
13. (To the applicant) You look puzzled, Mr Batty. Could you hear me?
14. THE APPLICANT: On one occasion I thought you had said something wrong. I believe you did.
15. LORD JUSTICE WARD: What was that?
16. THE APPLICANT: I was not sure whether I ought to - - you said something about knowing on the 18th or 19th I had to go back to work. I did not know at all I had to go back to work. I knew on the 18th - - I actually knew on the evening of the 17th and the 18th and the 19th that I would be going back to work shortly. I did not know at all - - there is no evidence to show I knew at all I was going back to work. Even the conversation on the 19th with Vicky Sugden did not say I was going back to work.
17. LORD JUSTICE WARD: Could that little exchange be included in the transcript and I will look at it and correct it if need be.
18. THE APPLICANT: Do I get a copy of the transcript?
19. LORD JUSTICE WARD: Yes, I think you should and so should the other side.
20. THE APPLICANT: May I ask about the other points, the first part of the argument regarding my contract of employment, whether or not that was .....
21. LORD JUSTICE WARD: You are free to argue everything. I have not excluded any argument.
22. THE APPLICANT: What about the presentation of the requirements to get them to produce telephone records?
23. LORD JUSTICE WARD: All of that you must renew to the court. I do not think much of it but you are entitled to renew all of that to the next hearing. If you think there is any possibility that this case would be helped to reach some settlement, this court has a mediation service. If you want it you should write to the office and say can you try and mediate so that we can settle this before it goes further.
24. THE APPLICANT: I will do that.
25. LORD JUSTICE WARD: You write to the office. Make a note on your pad that Lord Justice Ward suggested that if you wanted to ask for mediation, and you do ask for it, they may put the wheels in motion. I will reserve it to myself if available, but I may not be available. (Judge conferred with the associate)
26. THE APPLICANT: I have a question on the paper work. Should I take it away with me or leave it here?
27. LORD JUSTICE WARD: No. Leave it here because we are going to need it. There are two bundles, I hope. You have filed two sets of papers, I assume.
28. THE APPLICANT: I have one set of papers. I filed two, yes. One of them is the actual bundle that went before the court.
29. LORD JUSTICE WARD: That is right, but there are two copies of it.
30. THE APPLICANT: Yes. The addendum to it - I only sent one copy.
31. LORD JUSTICE WARD: We will make sure we have it.
Order: Application adjourned