United Kingdom Employment Appeal Tribunal

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Cite as: [1991] UKEAT 413_91_1710

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BAILII case number: [1991] UKEAT 413_91_1710

Appeal No. EAT/413/91

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 17th October 1991

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR D G DAVIES

MISS A P VALE

B C MATTHEWS APPELLANT

WOOLWORTHS PLC RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR A LYNCH

(Of Counsel)

Lamport Bassitt

46 The Avenue

Southampton

SO9 3JB

For the Respondents MISS M CARRS-FRISK

(Of Counsel)

Rowe & Maw

20 Blackfriars Lane

LONDON EC4V 6HD

MR JUSTICE WOOD (PRESIDENT): The appellant Mr Matthews was employed for some 30 years by Woolworths. He ended his employment with them when he was a District Manager and that employment came to an end on the 7th December 1990. The issues between the parties arise out of the termination of his employment. Broadly speaking he alleges not only that he was wrongfully dismissed but unfairly dismissed, that false allegations were made against him and that there was a clear intention to be rid of him. Woolworths, his employers say "no" he had had some warnings and we were entitled to dismiss him which we did after internal investigation and disciplinary proceedings.

Early in 1991 Mr Matthews consulted Solicitors. On the 18th February of this year he filed his Originating Application and connected with that were the details of his complaint which seems at first reading to have been prepared for him, probably taken in substance from a statement made to his Solicitors.

On the 28th March the Notice of Appearance was filed. On the 4th April an application was made on behalf of Mr Matthews for legal aid. A certificate limited to Counsel's opinion was issued the following day, the 5th April.

On the 25th April there was a pre-hearing assessment attended by both sides; no mention was made at that hearing of the legal aid certificate or any intention to proceed in the High Court. Then on the 22nd May 1991 Solicitors acting for Mr Matthews wrote to the Regional Office of Industrial Tribunals asking for a stay of the Industrial Tribunal proceeding pending the outcome of High Court proceedings on five grounds; those were the five grounds which were before the learned Chairman when he reached a decision on the matter.

The Respondents, Woolworths objected to that stay being granted and so the hearing came before the learned Regional Chairman, Mr Michael Rich at Southampton on the 17th June of this year; by that date a writ had been issued on the 12th June but through an error in the local High Court Registry it had been stamped at a later date instead of the date of 12th June.

The learned Chairman refused the application for a stay and gave his reasons for that in a short Judgment which was dated the 20th June.

On the 29th July a Notice of Appeal to this Court against that Interlocutory Order was lodged. On the 13th August Mr Matthews' Solicitors sought discovery in the Industrial Tribunal proceedings.

The stay limiting the original certificate to Counsel's opinion and allowing it to go forward as far as setting down was removed on the 29th August, presumably after an opinion had been given.

On the 16th September Woolworths provide discovery for the Industrial Tribunal proceedings as they had been requested. On the 23rd September Woolworths ask for discovery. On the 7th October Mr Matthews' Solicitors decline to provide it saying that this matter was under appeal.

On the 8th October the request was reiterated for discovery and particulars.

One of the points made by Miss Carrs-Frisk before this Court for Woolworths is that that is a somewhat unusual chronology.

Although Mr Matthews had taken legal advice right at the start of 1991, and although in fact a legal aid certificate was granted in 24 hours, yet no application was made before the Originating Application was launched on the 18th February 1991, and that was launched with documentation which clearly showed the allegations in some detail. She then comments that nothing was said at the pre-hearing assessment. She further comments that even after the interlocutory hearing and the Notice of Appeal to this Court discovery seems to be sought and indeed provided and then is objected to when Woolworths seek discovery on their part. The whole situation is somewhat unsatisfactory, so she submits.

The learned Chairman heard submissions from a Solicitor for Mr Matthews and he heard from a Personnel Manager from Woolworths. He gave his decision in three pages; he went through the various items which have been placed before him; he took each of those items and he made comments about them; he said that he did not think that the assessment of compensation was particularly complicated; he thought the allegations were serious but not all that serious. He recognised that damages in the High Court would exceed those for compensation in an industrial tribunal and he looked at the resolution of certain issues of fact; he also took a view about the question of legal aid and financing.

What he did not know, of course at the time, was the fact that the legal aid certificate had had the condition "limited to Counsel's opinion" removed. He did not know therefore that Counsel had advised High Court proceedings. He did not have before him as we have before us, a statement of claim and of course he did not have those other various interlocutory procedures that had taken place after the 17th June of this year.

Quite apart from those matters we have had made to us a number of points which do not seem to have been made to the learned Chairman. Some attempt has been made to try to assess what damages might be recovered in the High Court proceedings; whereas no particularly clear figure can be arrived at it might seem that it is somewhere between £25,000-£35,000, if one took £30,000 it might be a middle figure. No one helped him about the likely length of those proceedings; no one helped him about the likely cost of those proceedings on each side; no one helped him about the possibility of those proceedings being heard in the County Court and therefore perhaps being heard sooner than he had anticipated, or perhaps later than he had anticipated; no one raised directly the issue of estoppel nor sought to analyse and relate the issues which might be decided before him as against the pleadings in the High Court because those pleadings were not in existence.

There were therefore a number of matters and those are perhaps only a few which were not before him and which might, indeed would, have been of great assistance to him in reaching his decision in the exercise of his discretion.

Despite the apparent delay in bringing this matter up the application to stay was made before the opinion had been granted; before there was any real decision that High Court proceedings would be proceeded with.

The learned Chairman clearly, in paragraph 11 of his Decision, was sceptical about the situation; he said this:

"It is by no means certain that the High Court proceedings will continue. Counsel's opinion on the conditional Legal Aid certificate has not yet been obtained."

He also looked at the timetable and felt that it was somewhat unusual.

He is criticised on a number of grounds by Mr Lynch; amongst others that he did not adequately consider that any delay would be to the detriment of the applicant and that it was the applicant who was making the application.

The learned Chairman does mention delay and it was perfectly obvious to him that the applicant was the person seeking the stay. It is said by Mr Lynch that of course a learned Chairman must be presumed to know the law and that therefore the various authorities which have been helpfully cited to us should have been at the forefront of his mind and he should have remembered or applied and considered each of those matters.

Likewise it might be said on the other side that those advising Mr Matthews should have been aware of the guidance we gave in the case of Warnock v. Scarborough Football Club [1989] ICR 489 where at the very end of my Judgment I approach the problem of trying to protect the running of timing in proceedings before an industrial tribunal by suggesting that when an Originating Application was presented a letter could be sent along at the same time asking for a stay and pointing out that the intention was simply to protect the applicant's position. Therefore the learned Chairman thought that perhaps this was not going to be a genuine High Court case, and I use that word not perjoratively but simply that it was never going to come about. He is also criticised for the way in which he approached the position of Legal Aid and the grant of Legal Aid in High Court proceedings.

It is our view here that matters have changed so much that it would be in the best interest of both parties and indeed, in the interests of justice, that the learned Chairman, should have an opportunity of reconsidering all these matters. However, that is impossible unless there is an error in law and unless we are in a position to say that the Decision as it stands is flawed. We must bear in mind that the approach in these interlocutory appeals is the approach which we indicated in the case of Adams v. West Sussex County Council [1990] ICR 546. We are examining a wide discretion, there is clearly power to make the Order which he made; there was clearly no specific guiding principles as in Nasse. We are really here looking at the Decision on the basis of Wednesbury unless there was a clear misdirection on the law.

Although Mr Lynch has made a number of telling points in the light of our approach we only intend to consider one. It seems to us to indicate an error of approach. It is in the first sentence of paragraph 9 of the Decision. The learned Chairman says:

"I start any consideration of applications of this sort on the basis that the normal course of events is that the Industrial Tribunal proceedings should continue."

Now that is a guiding principle which he sets out at the start of his deliberations. In the paragraphs above that he has stated facts and the submissions made on each side. The phraseology of that sentence seems to be very similar to the phraseology contained in a Judgment of this Court in the case of Carter v. Credit Change Ltd [1979] ICR 909. It was considered by the Court of Appeal in that same report which starts at page 908. In the Judgment of this Court Mr Justice Slynn, as he then was, he is about to become Lord Slynn, referred to an earlier decision of this Court in Jacobs v. Norsalta Ltd [1977] ICR 189, and referred to the suggestion that basically cases in industrial tribunals should be heard. He says this:

"We think that the starting point is that they should be allowed to proceed unless there are special reasons why the matter should be delayed".

and that seems to us very similar to the sentence used by the learned Chairman in the present case.

That sentence was the one which was criticised in the Court of Appeal which reversed the decision. The leading Judgment in the Court of Appeal was given by Lord Justice Stephenson and he refers to that particular aspect of the Judgment of this Court at page 918 at "G" where the learned Lord Justice says this:

"As it seems to me, the error - what I find to be an error, with all respect to the appeal tribunal in this case - of their decision is that they elevate into a general principle what Phillips J. in the Jacobs case considered, and rightly considered, a factor, and an important factor, in arriving at a just decision and a decision which would simplify matters without doing injustice to the parties. The appeal tribunal seems to me in this case to have stepped out of line in seeking to lay down a general principle that an industrial tribunal must hear an application to it before High Court proceedings unless there are special reasons or unusual circumstances."

No doubt the learned Chairman was not referred to that particular case as there are so many cases now which have been decided on this question of staying proceedings in industrial tribunals but we think that it was too general a statement of principle in all the circumstances.

It amounts to an error of law.

It follows therefore, without needing to go through every point that has been made we feel that it is open to us to say that there was a flaw in this Judgment. We also mention the fact that since the learned Chairman reached his Decision there is the later case in this Court of Bowater plc v. Charlwood [1991] IRLR 340 which may be of assistance to him.

What then should we do? It follows from what we have already said that clearly it would be wrong for us to exercise our own discretion in the matter. Indeed we feel that there are further matters that either side may wish to look into in rather greater detail before the issue is returned and argued afresh in front of the learned Chairman.

However, we have powers under Schedule 11, paragraph 21(1) to make any Order which could have been made in the Court below for the purposes of dealing with the matter, and in order to save time and to help the learned Chairman when the matter comes back before him where he will have all this further documentation, we propose to order discovery on both sides, 14 days lists, and then the learned Chairman will be able to see one of the major points taken by Mr Lynch exactly how much documentation really is involved in the present case.

We considered the question of particulars but we feel that no specific request has been made as yet however that is a matter that may be dealt with so as to narrow the issues and see exactly what is at stake. Once those matters have been prepared then the learned Chairman can have the opportunity of reconsidering the matter afresh with far more information and far more detailed help before him upon which to exercise his discretion and no doubt he will be referred to any authorities by either side which either side may deem to be of assistance to him. It should not be assumed that we have ourselves formed any view. The learned Chairman may or may not reach the same conclusion as formerly. It is entirely a matter for him.

The appeal is therefore allowed and the matter is to be remitted to the learned Chairman for him to reconsider the matter in the light of any further documentation either side may wish to put before him.