Appeal No. EAT/903/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17 October 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS P TURNER OBE

	MR B M WARMAN

ANGLO DUTCH MEATS (UK) LTD	APPELLANTS

MR W YOUNG	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE OR 	REPRESENTATION BY OR 	ON BEHALF OF THE 	APPELLANTS

For the Respondent	MR R DANIELLS-SMITH
(of Counsel)
Messrs Wynne Baxter Godfree
47 Cornfield Road
Eastbourne
E. Sussex BN21 4QN

	JUDGE HULL QC:  This is an appeal to us from an Industrial Tribunal's decision on 27 July 1994 in which they refuse an application for a review.  

	The review which was applied for was of a decision of theirs which had been promulgated on 28 March after a sitting on 21 February 1994 at Brighton under the chairmanship of Mr Cleugh with his two Members.  The nature of the application which they heard on that occasion was an application by Mr Young who, at the material time, was employed as a night-shift engineer, a gentleman now aged 32 or thereabouts.  He complained of unfair dismissal and he claimed compensation.  

	In their original decision which was promulgated on 28 March, the Industrial Tribunal found that unfair dismissal had been established.  They made a substantial compensation award, awarding compensation in particular in respect of loss of earnings, past and future;  a total of £10,800 in respect of compensation.  Very shortly thereafter, on 9 April 1994, there was an application by the employers for review.  They claimed that new evidence had come to light and the Industrial Tribunal dealt with that in this way:  having set out their earlier determination, they said that:

		"The Respondents in their letter of 18 April 1994 submitted a statement from Mr Keith Herbert which stated that he had approached the Applicant to look at problems he had encountered with his car.  This was on the recommendation of a Mr P Messenger, who told him that the Applicant had just completed a service on his car.  In the covering letter of 18 April 1994 the Respondents' Representative stated that Mr Young had also undertaken repairs to a vehicle belonging to a Mr I Oakley.

		3.	At the hearing the Respondents were represented by Mr K Cadoo of the Legal Protection Group Limited, and the Applicant appeared in person.  The Respondents produced a statement from Mr Messenger dated 26 July 1994 in which he stated that he knew the Applicant regularly repaired and serviced cars, and that in February 1994 he carried out a service on his car and charged £35.64 for parts and labour.

		4.	The Applicant submitted that he had not undertaken any work for remuneration since the date of his dismissal, and charges for work carried out on Mr Messenger's car were in respect of hire of equipment and purchase of parts.

		5.	A Tribunal has power under Regulation 11 of the Industrial Tribunal Rules of Procedure to review its decision inter alia on the grounds that:

		(d)	new evidence has become available since the conclusion of the Hearing to which the decision relates provided its existence could not be reasonably known of or foreseen at the time of the Hearing; or

		(e)	the interests of justice require such a review.

		6.	The Respondents submitted that the Applicant had been working during periods of post-dismissal unemployment, and in so far as any work was carried out after the date of the Tribunal Hearing this evidence could not be available at that Hearing.  However, we must be satisfied that such evidence is credible, and would or might have had a decisive effect on the Tribunal's decision if available at that time, and in support the Respondents indicated that evidence is available in respect of three areas indicating the Applicant was involved in remunerative work involving car repairs.

		7.	Firstly, it is alleged that the Applicant carried out in February 1994 a service on a car belonging to a Mr Messenger, and he charged for parts and labour.  The best evidence would come from Mr Messenger himself, but the only evidence being made available was a statement from Mr Messenger dated 26 July 1994 in which he states that the Applicant regularly repaired and serviced cars but no further details are given, and little, if any, weight can be attached to this statement.

		He goes on to state that he paid Mr Young £35.64 for parts and labour, but no evidence can be produced to support a labour element in this account.

		8.	Secondly, Mr Herbert's statement goes no further than stating that the Applicant did not carry out any work for him as he was very busy at the time, and it can be no more than conjecture that he was busy on car repair work.  The Respondent's representative adds to Mr Herbert's statement saying that the Applicant worked on vehicle repairs for a Mr Oakley, but this statement does not appear in Mr Herbert's statement and again little, if any, weight can be attached to such evidence.

		9.	Thirdly, such references to work for Mr Oakley are totally unsubstantiated, and no statement by him has been produced and it is apparent that he is unwilling to give evidence.

		10.	It is the Tribunal's unanimous decision that representations made provide insufficient grounds to justify, in the interests of justice, a review in this matter and the original decision of the Tribunal is accordingly confirmed."

	The appeal is against that decision and in the notice of appeal it is averred, amongst other things, that since the application had not been rejected in a summary way by the Chairman in accordance with Rule 11, the Tribunal had evidence from the Applicant but only allowed the Respondent's representative to make submissions, despite the fact that two witnesses, namely Mr Keith Herbert and Mr Bill Shaw had attended the hearing expressly to give evidence but were not allowed to be called.  The Tribunal, however, made a reference to Mr Herbert's statement, which they criticise and at paragraph 8 of their decision stated that:

		"... little, if any, weight can be attached to such evidence".

	Mr Herbert was, at no stage, allowed to give sworn evidence.  It is submitted that the Tribunal effectively treated the proceedings as if it were a review hearing rather than an application for a review and, in so doing, appear to have ignored the laws of natural justice by failing to hear the Respondents' witnesses and denying the Respondents' representative the right to challenge the Applicant's evidence by way of cross-examination.

	The Rule concerned is, as I say, Rule 11 contained in Schedule 1 to the Regulations of 1993 and, under that rule, providing for a review.  One of the grounds is new evidence and another the interests of justice.  Where new evidence has become available the proviso is as set out by the Tribunal itself, that its existence could not be reasonably known of or foreseen at the time of the hearing and, of course, it is well established that "the interests of justice requires such a review" is not a ground which can be brought into play when the true ground is "new evidence".  It is essentially a question of new evidence here.

	Under paragraph 5 of Rule 11:

		"An application ... may be refused by the President or by the chairman of the tribunal which decides the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."

That was not done here, that course was not taken and the Rule, therefore, provides in paragraph 6:

		"If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case,"
and then there are provisos which do not apply.  Paragraph 7:

		"On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman's hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal."

So the power of the Tribunal is to vary or revoke their decision and if it is revoked then, as the Rules provides, a further hearing shall take place.

	The application is to be "heard", says the Rule, and if we look at the definitions in the Regulations themselves, "hearing" means the sitting of a Tribunal duly constituted for the purpose of receiving evidence, hearing witnesses or doing anything lawfully requisite to enable the Tribunal to reach a decision on any question.  So there can be no doubt that the Tribunal, if it thought it right to do so, could hear witnesses on this occasion.

	But in our view this was a discretionary power.  If one looks at the note in Harvey vol. IV dealing with this topic, the learned authors correctly set out at section T, para. 1135, first of all, the Rule itself:

		"Before a party can obtain a review on this ground, he must show that the new evidence which he now seeks to adduce was not available before the conclusion of the original hearing, and also that its existence could not reasonably have been known of or foreseen."

And they go on and they cite an observation by Mr Justice Popplewell which we, of course, must accept as authoritative:

		"... not only must the new evidence be relevant but that it will probably have an important influence on the result of the case (Wileman v Minilec Engineering Ltd [1988] IRLR 144 at 147)"

and on the next page at paragraph 1146 the textbook cites:

		"Yorkshire Engineering and Welding Co Ltd v Burnham [1973] IRLR 316, [1974] ICR 77, NIRC: B, who was found to have been unfairly dismissed, was awarded compensation for future loss based on estimated future earnings [which are set out].  He in fact obtained employment shortly afterwards [again, earnings set out].  The employers applied for a review, arguing that the compensatory award should be re-calculated on the basis of B's actual earnings.  The tribunal refused the application.  Although the [Industrial Relations Court] dismissed the employers' appeal, Sir John Donaldson accepted the principle that a review could be granted in such circumstances.  The test is whether the forecasts which were the basis of the decision had been falsified to a sufficiently substantial extent to invalidate the tribunal's assessment `so that the whole substratum of its award has gone'"

	That makes it perfectly plain, to our minds, that this is a discretionary power and the Industrial Tribunal, before they were fully embarked on hearing any evidence were entitled to consider what was being tendered to them in support of the application for them to review their decision.  They were entitled and, indeed, very sensible, to proceed in the way that the Court of Appeal would do in such circumstances;  to look on paper at what the evidence was and ask themselves whether this evidence could not have been foreseen at the time of the original hearing;  ask themselves whether it was, in that sense, new.  Ask themselves whether the evidence was prima facie of a decisive character, likely to have an important effect on the decision.  All those steps they were perfectly entitled to take before they decided whether to hear any witnesses.

	Looking at it just on paper, accepting what the witnesses said and what was said on paper, they asked themselves entirely the correct questions.  It seems to us that there is no requirement on them, when they have reached the conclusion that that evidence does not support the application for review by fulfilling the criteria which have been laid down by the Rules and in the authorities, to go on and hear oral evidence.  They had heard what was tendered.  They understood, of course, the basis on which they had decided on compensation.  What was put forward was insufficient to cause them to grant a review.  It was somewhat speculative, it was uncertain, they were not satisfied that it was new evidence in the proper sense and, it might also be said, such enquiries as were made after their decision were perfectly open to the employers before the first hearing.

	It seems to us that the Industrial Tribunal were entitled to proceed in the way they did.  The decision which they reached was well within their discretion on any view and it is to be remembered that in exercising their discretion an Industrial Tribunal should rightly be reluctant to reopen matters which have been decided.  People are not to have two bites of the cherry.  

	In all those circumstances, having thought about it as carefully as we can and having read everything that is said on behalf of the Appellant, we have come to the conclusion that this appeal cannot succeed and it falls to be dismissed.