England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge D Pugsley)

		Royal Courts of Justice Strand London WC2 Monday, 30th April 2001

Monday, 30th April 2001

1. LORD JUSTICE PETER GIBSON: Derek Nobbs applies for permission to appeal. He also seeks the production of certain documents. This is the latest of numerous attempts by Mr Nobbs to set aside an adverse decision given by an Employment Tribunal in Bury St Edmunds over three years ago.
2. Mr Nobbs was employed by Cam Systems Ltd ("CSL") from 29th September 1985 to 31st July 1997. He was director of engineering and the holder of a 5% shareholding in CSL. In 1996 an 81% shareholding was purchased by another company from the holders of that shareholding. Alan Roe was appointed managing director of CSL. Mr Nobbs became unhappy with the way in which Mr Roe was running CSL. Mr Roe discovered that Mr Nobbs was placing orders on outside contractors without agreement on prices. Mr Roe told Mr Nobbs that the practice was not to continue. But it did and Mr Roe gave Mr Nobbs a warning on 23rd June 1997. Mr Roe directed that all the staff including Mr Nobbs should work in an open plan office. Mr Nobbs insisted on having his own office. On 25th July Mr Nobbs was suspended and given notice of a Board meeting to consider his position. At the meeting Mr Nobbs challenged the method of operation of the company. He refused to continue at the meeting despite being warned that the meeting would continue in his absence. He left and he was summarily dismissed on the ground of gross misconduct.
3. Mr Nobbs applied to the Tribunal on 26th September 1997, complaining of unfair dismissal. When the case came before the Tribunal he was represented by a friend. By a decision given orally on 13th February 1998 promulgated on 23rd February the Tribunal gave summary reasons for finding that Mr Nobbs was not unfairly dismissed. On 8th March 1998 Mr Nobbs applied for a review of the Tribunal's decision, claiming that new evidence had come to light. But on 23rd March 1998 that application was refused. On 15th May 1998 at Mr Nobbs' request the Tribunal gave extended reasons for the decision given orally on 13th February 1998. In its extended reasons the Tribunal said that where there was a conflict of recollection, it preferred the evidence of CSL's witnesses to that of Mr Nobbs. It said:

"18We find that the applicant was dismissed and that the reason for the dismissal was misconduct. We are aware of the fact that the administration of small private family companies is quite distinct from the formal arrangements which apply to public companies. If the applicant was dissatisfied with the arrangements then that aspect of the matter should have been redressed by the appropriate action under company law. There was no justification for the applicant's direct confrontational attitude with Mr Roe.

19Having regard to all the circumstances including the attempts by the company to make the applicant change his views ... we are satisfied that the dismissal was fair."

4. Mr Nobbs appealed to the EAT. He swore an affidavit alleging bias against the Chairman of the Tribunal. He appeared in person at the preliminary hearing before the EAT on 2nd December 1998. His appeal was dismissed as disclosing no arguable point of law. Mr Nobbs did not seek to appeal to this court.
5. However, on 7th October 1999 Mr Nobbs made a second application for a review by the Tribunal of its decision of 23rd February 1998. That was refused on 4th November 1999. Mr Nobbs sought to appeal out of time to the EAT against that refusal. The Registrar of the EAT refused to extend time. Mr Nobbs appealed against that refusal. The EAT on 20th June 2000 dismissed the appeal. Again there was no appeal to this court.
6. In the meantime Mr Nobbs made no less than seven further applications to the Tribunal for a review of the original decision of 13th February 1998. All were refused. It is sufficient to concentrate on the last of them, that of 26th April 2000. The Tribunal Chairman by a decision promulgated on 11th May 2000 set out fully the reasons why that application was refused. He said that the application had no reasonable prospect of success and that Mr Nobbs had repeatedly sought to reopen the facts and that was not the function of a review. Mr Nobbs then appealed to the EAT from the Tribunal's order of 17th May. But that appeal was dismissed by the EAT at a preliminary hearing on 4th December 2000. The EAT found no error of law by the Tribunal and pointed out that the Tribunal is the fact-finding body. Again there was no appeal to this court from the order. Instead Mr Nobbs on 19th December applied for a review by the EAT of its order of 4th December on the grounds that the hearing was unfair and the decision perverse and that the decision was unjust. But the decision to which he refers is the original decision of the Tribunal of 13th February 1998. Not surprisingly the EAT refused the application on 22nd February 2001 as having no reasonable prospect of success.
7. Mr Nobbs now seeks permission to appeal against that refusal. In so doing he has, I am afraid, misapprehended the function of a review. The Tribunal has limited powers of reviewing its own decision (see rule 11(1) in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993). So too has the EAT. The EAT by rule 33(1) of the Employment Appeal Tribunal Rules 1993 may review any order made by it and may, on such review, revoke or vary that order on the grounds that

(a) the order was wrongly made as a result of an error on the part of the Tribunal or its staff,

(b) a party did not receive proper notice of the proceedings leading to the order, or

(c)the interests of justice require such review.

8. The language of paragraph (c) appears to be wide, but it has repeatedly been pointed out that that paragraph is limited to repairing matters such as an error in jurisdiction or a procedural mishap and it is not intended to allow cases to be re-argued and reheard. In short, a review is not an appeal.
9. The grounds on which Mr Nobbs sought a review of the EAT's decision do not fall within rule 33(1) at all. They do not disclose any reason why the EAT should look again at its own decision. They are, I am afraid, impermissible attempts to challenge the original decision, when an appeal from that decision failed in December 1998. The intended grounds for appeal to this court, likewise, do not touch on any of the grounds on which a review is permissible, still less do they show why in the exercise of its discretion the EAT erred in refusing a review. An appeal would have no real prospect of success, nor is there any compelling reason why this appeal should go ahead. I have no doubt that Mr Nobbs is sincere in his unhappiness with the original decision back in February 1998. But this court, like the EAT and like the Tribunal, is bound by rules which govern the procedures which it must follow.
10. For the reasons which I have endeavoured to explain, the attempt to take this case further is hopeless. I would therefore dismiss this application and with it falls the ancillary application for the production of documents.
Order: Application dismissed.