Appeal No. EAT/701/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6th October 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS T MARSLAND

	MR A D SCOULLER

KNIBB & PLUMPTON	APPELLANTS

LIVERPOOL C C	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS V GAY
Bruce Piper & Co
1 Mabledon Place
London
WC1 H9 AJ

For the Respondents	NO REPRESENTATION
BY OR ON BEHALF OF THE RESPONDENTS

	MR JUSTICE WOOD (PRESIDENT):  This is an Interlocutory Appeal from a refusal by a learned Chairman sitting at Liverpool, to adjourn a case for one day tomorrow because one of the Members of the Bar appearing before him is of the Jewish religion and tomorrow is the Jewish Day of Atonement which is, as we all know, is a very strict and important day in the Jewish religious calendar and it is a day on which no one would expect a religious Jew to work.

	Because of the point taken by some learned Chairman on other occasions about our ability properly to deal with these most immediate interlocutory appeals we deem it wise that we should at once indicate that we exercise our powers under Rule 32(2) for the expeditious and economical disposal of these proceedings and otherwise in the interests of justice to dispense with the takings of any step required or authorised by these Rules for the purpose of being able to hear this matter, which has in fact been brought before us ex-parte, but the Respondents would in any event, as they have indicated in a letter, agree with the course which is proposed by Miss Gay for the Appellants.

	The situation is this, that as a result of a number of redundancies arising in the City of Liverpool, there are a substantial number of applicants alleging unfair dismissal.  Two of them are Mr Knibb and Mary Plumpton, and they being proceedings which in fact started yesterday, 5th October.  It was estimated that their case would take some eight days, there is a vast amount of documentation, I think up to 1,000 pages, but it is the view of Mr Bradley and Mr Baxter, the two Counsel appearing before the Tribunal, that this case is almost certainly likely to extend beyond the eight days allotted to it, so that further days will have to be set aside in the future.

	Following behind this case are other cases of unfair dismissal, by other applicants, so that there is a succession of these cases and a great deal of the paperwork that is relevant for the Knibb and Plumpton case will be relevant for later cases.  It is as a result in part of that that those instructing Counsel on behalf of the Applicants decided they would rather have one member of the Bar who could conduct the cases successively for the relevant applicants, the one after the other.  Familiarity with the case, with the backround of course would save time and cost, indeed in the instructions given to Counsel.

	The 5th October and eight days thereafter was fixed some time ago as the date for the hearing.  Thereafter Solicitors looked around for Counsel, they contemplated employing some three different Counsel who were experienced in this branch of the law.  Two of them felt that there might be a conflict of interest in certain cases and Mr Bradley was selected, he accepted the brief, but he accepted on the understanding that he would not be available on the 7th October, that is tomorrow, because of the Jewish Day of Atonement.  A month before, the letter was written to the Tribunal indicating that that was so and hoping that the Tribunal would agree to adjourn for that one day.  It was also suggested that a possible witness could fill in who would need to be cross examined and that careful notes could be taken and presented to Mr Bradley for the following day.

	The case started, in fact, on Monday and yesterday the two Counsel virtually, because there is no disagreement between them, applied again to the learned Chairman to adjourn for tomorrow's hearing.  This was refused, we are told that one of the reasons for refusal was that the applicants should have arranged for different Counsel who would be able to be present on that day and therefore there was no excuse, they must suffer for that failure on their part.  Whether that is entirely accurate as Ms Gay has indicated, she was not there, and therefore we can pay, perhaps, scant attention to that ground, but the situation is this, that these are cases which are going to extend over a number of days and Mr Bradley, rightly said that he could not appear on that date.  It was a month ago that application was made for adjournment on that day.  It is possible that could have taken place, both sides Counsel agree that it is fair to adjourn.  Both Counsel agree that the case will take more than the eight days.  It follows therefore, that tomorrow the Tribunal will have to decide what to do.  Mr Bradley will not be there, whether the Applicants are there or not we know not.  Whether the Liverpool City Council is prepared to continue in the absence of the other side, we know not.  The most difficult situation and the most delicate situation is going to arise, because, above all it is for the Tribunal to do that which is fair, just and reasonable between the parties in the circumstances.  If, for instance, there was no adjournment tomorrow there is the possibility, we say no more than that it is a possibility, that if complaint was therafter made that there was a breach of the rules of natural justice in the step taken by the Tribunal, then the whole matter would have to be started afresh with a waste of costs and not only that but also Tribunal time.

	The only way in which this Court can interfere with a general discretion of a Chairman of Tribunals is on the Wednesbury principles, namely, first that the learned Chairman failed to take into account something he should have taken into account, secondly, that he took into account something he should not have taken into account, or thirdly, that he was plainly wrong in the view which he took and the Order which he made.  We find ourselves at present unable to interfere with that discretion.  It is not enough for us to say that we would, almost undoubtedly, have reached a different conclusion, because we would have doubted whether justice can be done in the circumstances which are likely to arise tomorrow morning.  However, those circumstances may be different, it may be different facets of the problem may appear and matters which were not known to the learned Chairman when he decided not to grant an adjournment will become apparent to him, in which case he can exercise his discretion afresh.  However, we do note that Mr Bradley was perfectly straightforward in indicating from the beginning that he could not appear on the day of the Jewish Day of Atonement, if there is any blame at all when the facts ultimately are arrived at, it may be that there is an issue as to costs, but the issue as to costs can be dealt with at a later date when the Tribunal know what it is all about.  The only loss to the public Exchequer is the loss of a one day's hearing of a tribunal and whether or not the learned Chairman or the Members can spend time reading some of the 1,000 pages we know not, but it occurs to us that unless they have read those 1,000 pages time might usefully be spent in that occupation.  

	We repeat that we are unable to interfere with this Decision.  But in the light of further information which has been indicated to us it may be possible for the learned Chairman to review his Decision tomorrow morning or possibly even late tonight.  In those circumstances, but subject only to some documents which have just recently arrived, we would dismiss the appeal but we hope and believe that Miss Gay and her instructing Solicitor have an adequate note of what we have said and if needs be we will do our utmost to get a transcript out.