England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL

		Royal Courts of Justice Strand London WC2 Friday, 8th February 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal and for an extension of time in which to appeal. Coupled with it is an application for permission to introduce new evidence.
2. The short background to the applications is this. Mr. Malkan applied in 1994 for the post of a senior registrar. The circumstances in which he failed to secure the appointment led him to bring proceedings in the Employment Tribunal, including claims for race discrimination. The proceedings were concluded after a hearing in the Employment Tribunal at Shrewsbury on 30th January 1996. The claims were dismissed. There was an appeal to the Employment Appeal Tribunal. At a preliminary hearing on 24th May 1996 the appeal was dismissed. There then started other proceedings which were heard over a long period before a decision was made by the Employment Tribunal at Birmingham on 21st December 1999. In those proceedings certain claims were dismissed, but others were held to be established. That has led to an appeal by Mr. Malkan and a cross appeal by the respondent to that application. Those appeals are due to be heard in the Employment Tribunal in May this year.
3. In the meantime, this series of applications has been issued, seeking to appeal against the dismissal of the Employment Appeal Tribunal in May 1996 of the appeal against the Shrewsbury decision. It is submitted that there are grounds for granting permission to appeal and admitting new evidence which was not available to Mr. Malkan at the time of the Shrewsbury proceedings or in time for the hearing of his appeal by the Appeal Tribunal in May 1996. It is stated that this evidence only became available subsequently during the course of the Birmingham proceedings. It is submitted that this new evidence satisfies the requirements for the admission of new evidence on an appeal, those requirements being fundamentally the same as were applied before the Civil Procedure Rules and laid down by Lord Denning in the case of Ladd v Marshall.
4. All the applications are contested by the Secretary of State for Health, who is to be substituted or may already have been substituted for the original respondent in the Shrewsbury proceedings. That was the West Midlands Regional Health Authority. In a detailed written submission by Miss Collier, who is counsel for the Secretary of State, there is total opposition to permission being granted, to the grant of the extension of time, and to the admission of the new evidence.
5. When this matter came on for hearing this morning, it appeared that new counsel had recently been instructed on behalf of Mr. Malkan. After Mr. Berkley QC started to open his application, I pointed out to him the provisions in regulation 11 of the Employment Tribunal Regulations 1993, which conferred a power of review on employment tribunals. Regulation 11(1) provides as follows, and I omit the immaterial parts:

"Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that . . .

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing, or

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

6. The power is repeated in the 2001 Regulations. I pointed out that that power was wide enough to cover what was submitted on behalf of Mr. Malkan on this application. I also pointed out the possible difficulties in dealing with the new evidence which forms a crucial part of Mr. Malkan's current application by way of appeal, for this reason. Appeals from the employment tribunal are limited to questions of law. Questions of fresh evidence falling within regulation 11(1)(d) would normally be dealt with more appropriately by an application for a review to the chairman of the tribunal responsible for the original decision reached without that fresh evidence. I asked Mr. Berkley whether such an application has in fact been made. It appears from inquiries that it has not. I therefore proposed to Mr. Berkley and Miss Collier that it might be appropriate to deal with the current applications by adjourning them, with liberty to restore, in order to give Mr. Malkan an opportunity to make an application for a review under regulation 11. That application, I would emphasize, is made to the Employment Tribunal, not to the Employment Appeal Tribunal. It seems that there may have been some contact with the Employment Appeal Tribunal in May 2000 in order to persuade them to consider new evidence and that any attempt that was made to do that was not successful. Miss Collier made it clear that she was opposed to this course, expressing her client's concern about the long delay that had already occurred and the future delays that would be incurred if this course were taken. Mr. Berkley for Mr. Malkan submitted that the court should take the course which I have proposed, standing over for future consideration by this court all ancillary matters as well as the applications themselves. I have pointed out that there are difficulties in the way of an application for a review, just as there are difficulties in the applications before this court. In particular, the time for making the application is well past, and it would be necessary to persuade the chairman of the Employment Tribunal to grant an extension of time. It would also be necessary for Mr. Malkan's advisers to give careful consideration to the material on which they would wish to seek a review and the basis on which they put their arguments for an extension of time, as well as on whether a review has a reasonable prospect of success in the light of the new evidence.
7. Weighing up all these factors, the course which I consider would be most appropriate is to grant an adjournment to enable Mr. Malkan and his advisers to take the chance of seeking a review. If I proceeded today with the hearing of these applications and refused them, that would, for all intents and purposes, preclude any future attempts by Mr. Malkan to use this fresh evidence in support of an application for a review. If, on the other hand, I granted the applications and the matter proceeded to a full hearing and the appeal succeeded, the likely outcome of the successful appeal would be that the whole case was remitted to the Employment Tribunal for consideration by them. If there is something in Mr. Malkan's case, it seems to me that the earlier the Employment Tribunal are asked to consider it the better.
8. Finally, I have considered the matter of prejudice. I bear carefully in mind the serious points raised by Miss Collier about the time that has passed already and the possibility of future delay, but it seems to me that, on balance, I should grant the adjournment. If I refuse it, it seems, for the reasons that I have already stated, that Mr. Malkan will be irretrievably prejudiced so far as his chances of having this matter dealt with by way of review. On the other hand, if I grant the adjournment and do so on terms of expedition, there is no serious additional prejudice to the respondent. I propose to adjourn the application, with liberty to restore (the adjournment embraces all the ancillary matters, such as costs) on terms that, within 28 days of today, Mr. Malkan's advisers make an application to the Employment Tribunal for a review of the Shrewsbury decision of 30th January 1996, such application to be made under the current review provisions. I make it clear that if, through any unforeseen circumstances, Mr. Malkan's advisers are not able to comply with that, it would be necessary for them to make an application for an extension of time, supported by reasons why they have not been able to do the necessary work on the application within 28 days. The order I make is that the applications are adjourned generally with liberty to restore.
9. I should mention finally something that I should have mentioned initially. This application on behalf of Mr. Malkan was originally made to me on paper. I considered that the unusual nature of it made it unsuitable for me to deal with without an inter partes oral hearing so that the matter could be explored in greater depth. That is the reason why this application for permission has come before me in open court in the presence of counsel for the respondent, as well as the applicant.
Order: Applications adjourned as per judgment.