Appeal No.	EAT/1402/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 February 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MISS A MACKIE OBE
MR W MORRIS

MR J T MOSS	APPELLANT

ST HELENS & KNOWSLEY HOSPITALS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS S J DAVIES
(of Counsel)
Messrs Steggles
Solicitors
Park House
Lower Bridge Street
Chester CH1 1RS	

	MR JUSTICE HOLLAND:     This matter comes before this Tribunal in the following circumstances.  By an IT1 dated 6 June 1998 the Applicant, Mr J.T. Moss, complains against his employers, the Respondents, that he was unfairly dismissed.

	It was decided by the appropriate Employment Tribunal, that is the Tribunal for Liverpool, that there should here be a pre-hearing review conducted by reference to Regulation 7 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.  In the event the review was conducted by the Chairman, sitting alone, that is without any lay members.  The end result of the review was that the Chairman directed himself as to the terms of Regulation 7 (4), the terms of which are as follows:

“(4)  If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.”

	In the event, the Chairman having reviewed such of the facts as were before him, found himself able to conclude as follows:

“9.  ... The Chairman’s finding in this case is that there is no reasonable prospect of success for the applicant:  that is not to say that there is no prospect of success but it is felt that the applicant has to face the fact that, putting it colloquially, ‘the dice are loaded against him’ at any future full hearing.  He might ultimately succeed but the chances are that he would not.  On that basis the Chairman makes a costs order in the sum of £25.00.  That, of course, also puts the applicant on notice that if he proceeds with his claim and then fails, the respondent may raise the question of costs against him.”

	That latter observation involved a reference to sub-rule 6, the terms of which are as follows:

“(6)  An order made under this rule, and the tribunal’s reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman.  A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit.”

	In the event the Applicant has launched an appeal against that ruling by the Chairman.  The appeal has two essential elements to it.  The first is a complaint that the Chairman heard this matter on his own, the complaint being that the circumstances of the matter were such as peculiarly to lend themselves to assistance by lay members and that it was, on the face of it, wrong for a single Chairman to form a view about the circumstances of this particular dismissal and the Applicant’s prospects for success.

	The second ground is that, in any event, the Chairman was quite wrong and that there were reasonable prospects for success, thus it is that it submitted that his decision was perverse.  Put those two matters together and it is said that the decision below was overall perverse and there is a ground of appeal amounting to an appeal in law, such as should engage this particular Tribunal.

	In advancing this matter we have had the assistance, much appreciated, of an excellent skeleton argument prepared by Miss Davies on behalf of the Appellant, together with her oral submissions.

	Turning then to the position of this Tribunal, we are hearing this now by way of a preliminary hearing and our concern is as to whether we can make a final adjudication on this appeal, or whether it is a matter that should go forward for an inter-parties hearing before a further and differently constituted Tribunal.  The unanimous view of this Tribunal is that this is an appeal that can, and should be dismissed now, and should not go forward for an inter-parties hearing.

	Our approach to the matter is to draw strong attention to the fact that the Chairman’s decision culminates in a costs order in the very modest sum of £25 only and we add that a costs order in this context means, not the payment of costs, but the making of a deposit.  With that gloss upon his order it is manifest, in our judgment, that he is making a relatively modest adverse assessment of the matter, perhaps overstated in the terms of his last paragraph, and certainly one that should not, in our judgment, occupy further this Tribunal.

	In the interests of everybody this matter should now proceed for a full hearing on the basis of that deposit.  If Miss Davies is right that will result in an award for her client, the return of his deposit and an end to this matter.  If, on the other hand, the Chairman’s assessment is correct then there will be no such award, but either way the critical thing is to press on with this matter before the Industrial Tribunal and not occupy further months and costs bringing this matter to this Tribunal and awaiting its results, which results in any event cannot be final in this matter.  

	Thus it is, candidly and we think properly approaching this matter with a pragmatic air, we find ourselves quite unable to say that the decision of the Chairman was so perverse as to give rise to an arguable point of law.  We emphasise the place in that assessment of the fact that the deposit was as low as £25, when there was a maximum available to him of £150.  

	All that said, before we depart from this matter, we are surprised that the Chairman thought fit to make an assessment of the facts of this matter without the assistance of lay members.  The significance of that which the Applicant had done by way of making, it seems, unauthorised phone calls and the appropriate remedies for such, all that in the judgment of this Tribunal would have benefited greatly from the assistance of assessment by lay members from both sides of industry.  It may well be that had there been lay members present then either a different view would have been taken, alternatively a view would have been taken that might have been determinative of this whole matter.