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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Edwards v London Borough Of Sutton (Practice and Procedure : Amendment) [2012] UKEAT 0111_12_1207 (12 July 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0111_12_1207.html Cite as: [2012] UKEAT 0111_12_1207, [2012] UKEAT 111_12_1207 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
(SITTING ALONE)
LONDON BOROUGH OF SUTTON RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Instructed by: Lambeth Law Centre Unit 4 Co-operative Centre 11 Mowll Street London SW9 6BG
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No appearance or representation by or on behalf of the Respondent |
SUMMARY
PRACTICE AND PROCEDURE – Amendment
An application to amend was made which the Employment Tribunal Judge had refused purely on the basis that it involved new claims; that was clearly wrong. She should have followed the procedure in Selkent v More [1996] ICR 836 at 842, this being an application which involved an amendment which was arguable and of substance and not clearly time barred.
HIS HONOUR JUDGE SHANKS
Introduction
The appeal
3. I have been referred by Mr Stephenson, who is acting for the Appellant, to the case of Selkent Bus Company Limited v More [1996] ICR 836 at 842, a decision of Mummery LJ, who said this:
“Procedure and practice for amendments.
The rival submissions of the parties state the position at opposite extremes. Before we state our conclusions on this appeal, it may be helpful to summarise our understanding of the procedure and practice governing amendments in the industrial tribunal.
(1) The discretion of a tribunal to regulate its procedure includes discretion to grant leave for the amendment of the originating application and/or notice of appearance: reg. 13 see Cocking v Sandhurst Ltd [1974] ICR 650 at 656G-657D. That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal.
(2) There is no express obligation in the Industrial Tribunal Rules of Procedure requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e. in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.
(3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways:
(a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take in account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment. See Adams v West Sussex County Council [1990] IRLR 215.
(b) If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this tribunal on one or more of the limited grounds mentioned in (a) above.
(c) In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this tribunal on one or more of the limited grounds mentioned in (b) above.
(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all of the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:
(a) The nature of the amendment
Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.
(b) The applicability of time limits
If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s.67 of the 1978 Act.
(c) The timing and manner of the application
An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however a discretionary factor. It is relevant to consider why the application was not made earlier and it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”
Conclusion