Appeal No. EAT/466/92(2)

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 July 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR T S BATHO

	MR G H WRIGHT MBE

CHARLES H ALLEN LTD	APPELLANTS

MR G I RAWSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G PRICHARD
(OF COUNSEL)
Retail Motor Industry
Federation
Legal Departement
201 Gt Portland Street
London W1N 6AB

For the Respondent	MISS M O'ROURKE
(OF COUNSEL)
Newman & Maxwell
Lakeside House
9 Knightswick Road
Canvey Island
Essex SS8 9PA

	JUDGE HULL QC:  In this case the Appellants, Charles H Allen Ltd, appeal against a decision of the Industrial Tribunal for London North sitting on 6 May 1992 by which that Tribunal found that the Respondent, Mr Rawson, had been unfairly dismissed as manager of the Appellants' Ilford branch.  Charles H Allen have a second-hand car business.

	We do not need to go into the details of the hearing before the Tribunal.  There were allegations at first against Mr Rawson of incompetence in management but there was a more serious allegation which was eventually the one which was canvassed before the Tribunal.  It was put forward a little later.  It was that he had been engaged in what was fundamentally a dishonest practice.  He had been, it was said, engaged in trading for his own benefit with cars rather than for his employers' benefit, by subterfuges.  That allegation was only persisted in with regard to one particular motorcar.  The Tribunal heard the evidence of Mr Rawson and other evidence and it expressed itself on this issue of fact very strongly in favour of Mr Rawson.  It accepted his evidence and it rejected the evidence of the very serious allegation which was made against him and ordered compensation which was only limited by the statutory limit.  So that was the decision of the Tribunal.

	Very shortly afterwards according to the Appellants, further evidence was obtained and an application for review was made to the Tribunal.  That application was heard by the Tribunal, the same Chairman, and it was rejected.

	The Appellants then appealed to this Tribunal.  By their Notice of Appeal dated 4 July they did not in terms appeal against the refusal of a review.  They appealed against the decision.  They put forward various grounds and in particular they desired to adduce the new evidence, as it was called.  It is always a difficult matter to persuade an Appeal Tribunal or a Court of Appeal to hear fresh evidence.  The matter came before this Tribunal, presided over by Mr Justice May, on 19 February of this year.  The same Counsel who appear in front of us today appeared then and this Tribunal gave a long and careful Judgment in which it considered the matter.  It laid down the criteria, which appear to be common to the Court of Appeal and this Court, for admitting fresh evidence - that is to say that it was not reasonably available but that it is potentially decisive.  Having carefully considered the new evidence this Tribunal said that one part of it should be admitted, and that was the evidence of the registration document of the car in question.  Putting it very shortly if there was no proper explanation of the matter, that registration document might well show that so far from being a witness whose evidence should be accepted by a Tribunal, Mr Rawson was a person who had deliberately misled the Tribunal, had committed perjury and had obtained the decision of the Tribunal by those means, by fraud and so, of course, the decision should have gone against Mr Rawson.

	Nothing we say is intended to go to this.  It may very well be that Mr Rawson has a perfectly good explanation of it.  We know nothing of those matters, but this evidence on its face was potentially decisive in the view of this Tribunal which, as I say, carefully considered all the new evidence and decided to admit that part of the evidence.  This Tribunal, as I say with Sir Anthony May presiding, then decided not to continue with the hearing of the appeal themselves because they observed that they had seen a lot of other evidence which in their judgment should not be admitted on the appeal and they therefore adjourned the matter; and so it comes before us.

	Today the Appellants have abandoned all but one ground of their appeal.  They now wish to rely simply upon this further evidence and to say that in those circumstances the entire case should be reheard either by this Tribunal or by being remitted to a differently constituted Industrial Tribunal.  The other grounds were broadly that the decision of the Industrial Tribunal was perverse and that the Industrial Tribunal should have held that the enquiries conducted by the Appellants, Charles Allen Ltd were adequate.  We are concerned only with the question of the fresh evidence.

	As to that, Miss 0'Rourke took a point which is of some importance.  She said "How can this possibly show either an error of law on the part of the Tribunal or, on the other hand, perversity which amounts to an error or law in their dealing with the facts?  The Tribunal cannot be convicted of either such error if the matter was not before them.  The proper course for the Appellants here would have been to appeal to the Appeal Tribunal against the refusal of the Learned Chairman of the Industrial Tribunal to grant a Review".  That is the nature of her complaint and in those circumstances she says "there is no error of law".

	It appears to us that a logical difficulty arises.  If Miss O'Rourke's submission is correct, how could this Tribunal ever entertain an application to adduce fresh evidence?  Such evidence, however probative, however justly the Appellant protested that he had not been able to discover it in time for the hearing, could not possibly convict the Industrial Tribunal of an error of law; could not possibly show that the decision was perverse because by definition it had not been before the Tribunal.  We suggested to Miss O'Rourke that in those circumstances Sir Anthony's enquiry and that of the other members of the Tribunal was entirely beside the point.  It could have been met straight away by saying - "You have no business to embark on this, this Appeal is misconceived even supposing you admit the evidence which the Appellants wish to admit, you are engaged in an exercise of no value because no such evidence could possibly cause this Tribunal to find that the Industrial Tribunal was guilty of an error of law".

	Miss O'Rourke in reply to that says "Of course there were other grounds.  There were the grounds I mentioned - whether the Appellants had conducted the correct test under Burchell - whether the decision was perverse."  With great respect how can that be?  Because the Industrial Tribunal's findings on those points cannot be attacked on the ground of perversity or error of law if the material for that was not before them.  It is well established that this Tribunal (like the Court of Appeal, although of course there are important differences in jurisdiction) can admit fresh evidence and it would follow not merely that Sir Anthony May and his colleagues, were wrong in entertaining the application on this occasion but that all Employment Appeal Tribunals however constituted, who have decided to admit fresh evidence, were all acting outside their powers because what was involved could not be said to be a point of law.

	If that is right it means that even if evidence which would show that some miscarriage of justice had taken place (I am putting it at its highest) was available, this Tribunal could do nothing about it.  The most that could be done would be to apply to the Tribunal for a Review.  It means that all the decisions which have been made by this Tribunal (of which there are at least two reported) to admit fresh evidence, and the decision on this occasion, were quite misconceived.

	We do not believe that is the position.  It is true that under section 136 of the Act, which gives us our jurisdiction, appeal to this Tribunal is on questions of law.  In our view if it can be said (and I am putting it at its highest) that what is alleged by the Appellants is that the fresh evidence shows that there has been a miscarriage of justice and that the decision of the Industrial Tribunal has been obtained by fraud then that in our view is a matter of law which entitles us to interfere - if a miscarriage of justice has taken place.  If a decision has been obtained by fraud then in our view it is right for us to interfere.  We do not say for one moment that that is the position here, only that that is what is alleged, putting it at its highest.  We think it entirely inappropriate that we should embark on a fresh hearing and we think (1) that we have jurisdiction to entertain this appeal and to consider the fresh evidence (2) that in the circumstances the case should be remitted for a rehearing and (3) that it should be before a tribunal differently constituted from that which heard the original application and which refused the Review; and we so order.

	We observe however that in the original proceedings there was (page 21 of the bundle) an answer which related first of all to failures of management; that was abandoned.  There was a reference to "cars" and in fact at the hearing in front of the Tribunal the enquiry was confined to one car, without so far as we can see any formal application to amend being made or granted.  However, it is quite clear that the entire hearing proceeded on the basis of that car.

	We think it would be a very surprising and strange thing if an attempt were to be made to introduce evidence about other cars or other matters, unless of course material to this story about this car, but that we think is a matter for the sense of justice and the directions of the Tribunal which hears this case.  We should not say more than that, because we do not know what the evidence is going to be and we do not know how the parties are going to conduct their cases.