Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 564/16

 

 

 

CLAIMANT: Hilary Sloan

 

 

RESPONDENT: South Eastern Health & Social Care Trust

 

 

 

DECISION ON A PRELIMINARY CONSIDERATION

 

1. The claimant in a lengthy and detailed application, dated 24 July 2017, made an application for a review of the decision in the above matter, recorded in the Register and issued to the parties on 10 July 2017, on the grounds that:-

 

(1) new evidence has become available since the conclusion of the case; and/or

 

(2) in the interests of justice.

 

2. Under Rule 34 - 36 of the Rules of Procedure, insofar as relevant and material, is it provided as follows:-

 

"34(3) ... decisions may be reviewed on the following grounds only -

 

...

 

(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 that time; or

 

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

 

Preliminary consideration of application for review

 

35 (1) An application under Rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.

 

(2) The application must be in writing and must identify the grounds of the application in accordance with Rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.

 

(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision ...

 

and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked. [Tribunal's emphasis]

 

(4) If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman's decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under Rule 36.

 

The Review

 

36 (1) Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in Rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision. ...

 

(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. ... ."

 

3. In relation to the ground of 'new evidence', in the interests of finality of proceedings, tribunals are cautious, as seen in numerous legal authorities, in allowing decisions to be re-opened on grounds of new evidence. Therefore the power to review on this ground is constrained in a number of ways:-

 

(1) As set out in Rule 34(3)(d), the new evidence must be such that it was not reasonably available or foreseen at the time of the hearing.

 

(2) The above matters were first established in the well-known case of Ladd  v  Marshall [1954] IWLR 1489 and have been followed in these tribunals. In Wileman v Minilec Engineering Ltd [1988] IRLR 144 the following three limbs to the Ladd  v  Marshall test were confirmed in determining whether to permit fresh evidence on appeal, namely:-

 

"(1) the evidence could not have been obtained with reasonable diligence for use at the original hearing;

 

(2) the evidence must be such that if given it probably would have an important influence on the result of the case though it need not be decisive; and

 

(3) the evidence must be apparently credible."

 

The above test has been recently confirmed, taking account of the terms of the overriding objective, in the cases of:-

 

Outasight VB Ltd v Brown [2014] UKEAT/0253 ; and

 

Dundee City Council v Malcolm [2016] UKEATS/0019/15

 

In Outasight, HH Judge Eady QC acknowledged there might be cases where the interests of justice would permit fresh evidence to be adduced notwithstanding the principles were not strictly met:-

 

"49. More specifically, as to an application to introduce fresh evidence after the determination of a case, the approach laid down in Ladd v Marshall will, in most cases, encapsulate that which is meant by the 'interests of justice'. It provides a consistent approach across the civil courts and the EAT. ... Those principles set down the relevant questions in most cases where judicial discretion has to be exercised upon an application to admit fresh evidence in the interests of justice.

50. In saying that, I allow that the interests of justice might on occasion permit evidence to be adduced where the requirements of Ladd v Marshall are not strictly met, but it was ever thus. Hence, the residual category allowed by Rule 34(3)(e) ... and the recognition of how this might then be used in cases such as Flint and Deria. As to what circumstances might lead an ET to allow an application to admit fresh evidence, that will inevitably be case-specific. It is, of course, always dangerous to try to lay down any general principles when dealing with specific facts, particularly where - as here - one party is not represented and where the point was not fully argued below. That said, it might be in the interests of justice to allow fresh evidence to be adduced where there is some additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage ( Deria). This might arise where there are issues as to whether there was a fair hearing below; perhaps where a party was genuinely ambushed by what took place or, as in Marsden, where circumstances meant that an adjournment was not allowed to a party when otherwise it would have been (there apparently because of an error on the part of that party's Counsel)."

 

This view was long established, as confirmed in Outasight in the case of Flint v Eastern Electricity Board [1975] IRLR 277 and General Council of British Shipping v Deria & Others [1985] ICR 198, where it was held, on a review on the ground that new evidence should only be granted on the grounds of 'interests of justice' where there was some circumstance or mitigating factor which related to the failure to bring the matter within [Rule 34(3)(d)] and not to the nature of the dispute at large, making it such that the interests of justice required a review. Also, as confirmed in Flint Rule 34(3)(e) (interests of justice) cannot be used to 'outflank' the requirements of Rule 34(3)(d) (new evidence).

 

In a series of cases (see Burnley BC v Quershi [1992] UKEAT/917, new evidence which demonstrates a witness on whose evidence much turned was telling lies can lead to a review but only if it would make a material difference to the outcome. A party seeking to introduce new evidence on review ought to lodge a statement of the evidence on which he seeks to rely and also needs to give an explanation as to why the evidence was not relied on prior to the decision under review (see Drakard & Sons Ltd v Wilton [1977] ICR 642).

 

4. 'Interests of justice' has often been referred to as a residual category of case giving a tribunal a wide discretion (see Flint). However it was also held in Flint, although the discretion is undoubtedly wide, it was not boundless and it must be exercised judicially having regard to the terms of the overriding objective; and with regard, not just to the interests of the party applying for review but also the other party and the public interest requirement there should be, as far as possible, finality of litigation.

 

It used to be thought a review on these grounds could only be granted in exceptional circumstances (see Trimble v Supertravel Ltd [1982] IRLR 451) but this was doubled in Williams v Ferrosan [2004] IRLR 607. In Newcastle City Council v Marsden [2010] ICR 743 Underhill J reviewed the authorities and confirmed there was no test of exceptional circumstances and referred to the necessity of a careful assessment of what justice requires in a particular case, taking account of the terms of the overriding objective. Equally a test of 'procedural mishap' or 'procedural shortcoming' are no longer applicable but reaffirmed the principles referred to above in Flint.

 

5.1 In light of the principles set out in the above legal authorities, I now turn to the application for review itself; and, in particular, the application of the claimant, pursuant to Rule 34(3)(e) of the Rules of Procedure that 'the interests of justice require a review'.

 

In my judgment, in considering this matter by way of preliminary consideration, the claimant, in essence, is seeking to 're-open' and/or 're-run' the hearing before the tribunal and this is evident by the width of her challenge to so many of the findings of fact and conclusions of the tribunal, as set out in the decision. The tribunal, in the decision is not required to set out, in extenso, all the evidence it has considered and determined over a lengthy hearing. It is therefore not correct to state the tribunal have not taken into account 'written and oral evidence from both the claimant and the respondent's witnesses, in conjunction with evidence in the trial bundle, which was discussed in detail in the submission document prepared for the case [by the claimant's representative'. The decision, in accordance with the Rules of Procedure, sets out the relevant findings of fact, based on that evidence, and its conclusions for the purposes of determining the issues the tribunal was required to determine. The fact the claimant disagrees with those findings and conclusions is not sufficient to establish grounds for a review in the interests of justice. It has to be remembered this was a claim of unfair constructive dismissal where the issues to be determined by the tribunal, as interpreted in the legal authorities set out in the decision, are much narrower than the claimant seems to suggest given the width of this application and her challenge to the terms of the decision. As the authorities have made clear there has to be 'finality to litigation'.

 

5.2 In the circumstances, and after careful assessment of what justice requires in the circumstances of this case, for the reasons set out above, I am satisfied, on a preliminary consideration, there are no grounds for the decision to be reviewed in the interests of justice and there is no reasonable prospect of the decision being varied or revoked.

 

6.1 In relation to the claimant's application for review, pursuant to Rule 34(3)(d) of the Rules of Procedure, on grounds that '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 that time, 'it is important to note that the interests of justice ground, as seen in Rule 34(3)(e) cannot be used to 'outflank' the requirements of Rule 34(3)(d), as interpreted in Ladd v Marshall (see above).

 

6.2 It is difficult, for the purposes of this preliminary consideration, to ascertain, with any precision, the 'new' evidence sought to be relied upon on foot of this application for review, having regard to the terms and width of the claimant's said application, and, therefore, to apply with any certainty the principles set out in Ladd v Marshall and as recently interpreted and confirmed in Outasight. However, subject to the foregoing, the application, on this ground, appears to be:-

 

"Since the completion of the hearing the claimant and I are aware that there is strong and credible evidence to support allegations made by the daughter of EG, that Ms Hanna falsified entries in her mother's nursing notes. Ms Hanna used the contents of these entries in the nursing notes to make some of the allegations against the claimant in respect of this particular patient."

 

In the application it is suggested the 'new evidence' is credible; but any detail to support this contention has not been 'tested' and may well be in dispute between the parties.

 

Although the contents of the claimant's relevant patient notes and records, relating to various patients, not just EG, were a feature of the various investigations carried out, as set out in the decision, issues arise, which again have not been 'tested', whether any such 'new' evidence, if given, probably would have an important influence on the result of the case, even if not decisive, taking into account the relevant issues to be determined in this case, a claim of constructive unfair dismissal. Further, the application provides little, if any, detail, in relation to when precisely after the completion of the hearing the claimant and her representative became aware of this evidence, but, in particular, whether it could have been obtained with reasonable diligence for use at the original hearing. In light of the foregoing, given this is a preliminary consideration, I find it is not possible to reach a definitive conclusion on the above matters and therefore to enable me to determine whether there are grounds for the decision to be reviewed and/or there is a reasonable prospect of the decision being varied or revoked (Rule 35(3)) on foot of the application for review on the ground of 'new evidence'.

 

6.3 In light of the foregoing and, not without considerable hesitation, I have concluded, taking into account this is a preliminary consideration, and also the claimant's representative is not a legal representative, that I should direct a review, pursuant to Rule 36 of the Rules of Procedure - but a review which is only on this ground of 'new' evidence, pursuant to Rule 34(3)(d) of the Rules of Procedure. The fact that I have so decided should not be taken as any indication of the outcome of this review.

 

6.4 The parties and their representatives will be informed, in due course, of the dates and time of the said review.

 

 

 

 

 

 

 

Neil Drennan QC

Employment Judge

 

 

Date: September 2017

 

 

Date decision recorded in register and issued to parties: