Appeal No. UKEAT/0441/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2005

Before
HIS HONOUR JUDGE PUGSLEY
MR D CHADWICK
MR M CLANCY

MS M JONES	APPELLANT

ROTHERHAM METROPOLITAN BOROUGH COUNCIL AND OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

REVIEW HEARING

	APPEARANCES

For the Appellant	MR A J WALSH
(Representative)	
For the Respondents	MR N HILL
(of Counsel)
Instructed by:
Rotherham Metropolitan Borough Council
Legal Services
Civic Building
Walker Place
Rotherham
South Yorkshire
S65 1UF	

SUMMARY

Procedure and Procedure

Issue of costs when adjournment requested.

HIS HONOUR JUDGE D PUGSLEY

1.	This is an application by the Appellant, Ms Jones, for a Review a Decision of this Tribunal on the hearing of the Appellant’s appeal on 18 August 2004. It is pertinent to note from our judgment the issue that was before us was a contention by Mr Walsh, on behalf of Ms Jones, that the Tribunal had been misled by being misinformed by Mr Fletcher, a solicitor acting on behalf of the Local Authority, that they were ready for a hearing. 

2.	What had happened is not a matter which we intend to set out at any great length. In a nutshell, Ms Jones had been represented by a Mr Nye and subsequently he was no longer instructed. Mr Nye’s position was the subject of comment by us, and also by the Tribunal making the Decision. In the event the Tribunal Chairman, Mr Light, made an award of costs against the Appellants because the Appellant was not ready to go on and the Local Authority was. 

3.	The grounds of appeal of appeal which we had to deal with, if we may say so, rather proliferated beyond that which was necessary. We dismissed any suggestion of bias against the Chairman and refused to accept that we could allow a collateral attack on the Decision made in the case we were considering, by what had happened to a Mrs Thomas, whose case had been decided by another division of this Employment Appeal Tribunal. We rejected the suggestion that there was anything in the argument about the mentioning of patients or clients in the papers, and we noted that Mr Walsh had a slight temptation to rather widen the ambit beyond those matters with which we were immediately concerned. 

4.	Thereafter, Mr Walsh wrote to the Tribunal in effect complaining that he had been ambushed by the production of a mass of documentation. We were somewhat surprised, collectively, at that suggestion, as it was put to us today. In our recollection (members as well as my own) Mr Walsh was not ambushed, and in fact Mr Walsh was given time to look at the documents. In particular I note that in the letter of 31 August it is made very clear by Mr Walsh that Mrs Jones does not intend to appeal the Decision we made on 18 August. The original letters were sent to the President, and I therefore directed the matter should be considered by him, not by me, as it might be said to be a reflection on the conduct of this Tribunal. It was only after that the President had decided that it should be considered by me that I took the initiative in saying that there should be a review. 

5.	Mr Walsh may or may not forgive the comment that we are about to make; that he is a very able person: he seizes on a point, he lacks the experience (which is, we suppose, inevitable) to see the limitations of the point as well as its strength. On the last occasion the guts of the appeal that really matter, apart from the collateral attacks and the like, was the fact that he said the bundle that he had got from the Respondents had not got signed statements. We heard Mr Fletcher’s statement and we set its contents out in paragraph 5 of our original Decision. Mr Fletcher did not get people to sign statements. Many witnesses were in close proximity and the statements could be signed without difficulty. If necessary, he would have sent an unsigned statement and given an undertaking the signed copy would be forwarded. We can understand why Mr Walsh was concerned about that. These are matters we set out in our original decision.

6.	In his application for Review, Mr Walsh said that he was ambushed. With great respect to Mr Walsh, we do not think that that is accurate. In any event we say this, very simply, that there is now before us an issue of the exact extent to which Mr Nye co-operated in the preparation of the bundle. We accept, as we understand it, Mr Fletcher now accepts that his earlier statement was not wholly accurate in that Mr Nye actually did send a further amount of documents than hitherto had been revealed, and they were put on the bundle of documents. But we have to say this, that essentially this case it distilled into one issue: Mr Walsh applied for adjournment on behalf of Mrs Jones. The Respondents said they were ready and they wanted their costs. We do not think it necessary to go into myopic examination of exactly what the concept “ready” means; but we do accept that as far as the documentation was concerned, there was limited input by Mr Nye and that Mr Fletcher was not trying to mislead anyone in what he said to the Tribunal or to us. It now seems that he has been able to trace that some further documents were provided by Mr Nye, but effectively they were ready.

7.	What Mr Walsh has now said, in his skeleton argument, is something that he accepts was not raised before us in August. It concerns the position of a Police Constable Burberry. The Respondents had made it clear that they were going to call Mr Burberry, and indeed it seems to be accepted that at some stage Mr Burberry was not in the country, and after a hearing had been arranged, it had to be altered again because Mr Burberry was abroad. We are told by Mr Hill that a draft statement had been obtained by the solicitors in December 2003. However, there were difficulties about Mr Burberry being allowed to attest to any statement until the complaint, which had gone to the Police Complaints Authority, had been fully adjudicated on. 

8.	The Respondents applied for a witness summons in respect of Mr Burberry, and also an order that he bring with him certain documents, which arose either out of a complaint or a matter ancillary thereto. What Mr Walsh says, in very straightforward terms, is this: the Respondents got an adjournment in the early part of 2004 because Mr Burberry was not available; they got an adjournment later on, after an appeal hearing, because Mr Burberry had to have surgery.

9.	Mr Walsh has got a point. What he is saying simply is this; if Mr Burberry’s presence was so important as to account for an adjournment at the beginning of 2004 and in the Autumn of 2004, his statement was not in the witness statements, it was not signed, they were not ready. Therefore why should we pay the costs? 

10.	There is the fair point that is made that this is raised for the first time, as Mr Walsh accepts, other than a fleeting mention in the letters as to the Police Officer’s availability. The point is really flushed out in the skeleton argument, and is not really a matter of review. In the last hearing we did extend, as we said in the judgment, an enormous amount of licence to Mr Walsh to deal with matters which were not strictly within the confines of the appeal, and we have done so this time, so whatever else he feels, at least we have considered the points. 

11.	Mr Hill, after making the point that this is not a matter which is genuinely a Review because it was not mentioned even to us, let alone to the Tribunal earlier on dealt with the matter in this way. The Respondents agree they were going to call Mr Burberry; they had a statement from him in December 2003 in draft form; and they had the case moved some time in the beginning of 2004 to accommodate Mr Burberry. The Respondents accept they had not served a statement; and they were not in a position to do so. However, they knew that the Police Commission had resolved the matter; they knew that the time for submissions would have expired by the time of the hearing; and they knew that we could call Mr Burberry – they had a witness summons for him. The Respondents would have produced a statement and the Respondents state that had the Tribunal objected they would have appealed.

12.	Quite simply, we accept that this is a reliable account. We are fortunate in having on this panel those who have practical experience of employment tribunals. We are all unanimously of the view that in the real world this case was ready. The Officer would have been produced – there was a witness summons for PC Burberry. It may be, we are speculating, the Respondents were not downcast by the adjournment. But the reality of the adjournment, as a matter of causation, was the Appellant’s claim for the adjournment, and the Respondents were ready on any true assessment of the position. Therefore we have come to the position that the application for Review fails and is dismissed. 

13.	I ought to say, and do, that maybe I was overindulgent to Mrs Jones in allowing the Review to proceed. But I think I speak for all of us in simply saying this, that we are comforted by the fact that what we have seen and heard would have been very difficult to distil in correspondence and it is only by an oral hearing that we are able to do what we believe to be justice. Having heard the way Mr Walsh has put it, and the points made by Mr Hill, the reality is our position is not changed at all.