United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 63_93_2904

Appeal No. EAT/63/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 April 1993

Before

HIS HONOUR JUDGE J PEPPITT QC

MR J R CROSBY

MR D O GLADWIN CBE JP

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MR D GILBERT           APPELLANT

PORTSMOUTH PUBLISHING & PRINTING LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KIBLING

(OF COUNSEL)

Messrs Brian Thompson &

Partners

Solicitors

102 St George's Square

London SW1V 3QY

For the Respondents MR T KERR

(OF COUNSEL)

Messrs Blake Lapthorn

Solicitors

New Court

1 Barnes Wallis Road

Segensworth

Fareham

Hampshire PO15 5UA


 


JUDGE PEPPITT QC: On Monday 3 May I entertained in Chambers an appeal by the Appellant from a decision of the Registrar refusing to order that the Chairman of the Tribunal which heard this matter should produce his notes for use on the appeal. I gave the reasons for my rejection of that appeal in my Judgment and refused the Appellant, Mr Gilbert, leave to appeal from my decision to the Court of Appeal.

Mr Kibling today at the substantive hearing of the appeal makes two applications; firstly for an adjournment of the hearing because, as he indicated to us, his client proposes to seek the leave of the Court of Appeal to appeal from the decision which I gave in Chambers. That being so, he says, it would be unfair and inconvenient for us now to require him to advance those aspects of the substantive appeal which would not require the Chairman's Notes. Far better, he says, to await the decision of his application for leave to the Court of Appeal and for his appeal before us to proceed in final form either with or without the Chairman's Notes.

Mr Kibling's second application is related to but different from the matter I considered last Monday. It appears that because his client Mr Gilbert is deaf, there was a verbatim record taken and flashed on to a screen for Mr Gilbert's use of all the evidence with the exception of Mr Gilbert's given to the Industrial Tribunal. That record is now contained on a hard disc and could be printed out for use if necessary, on the appeal.

So, says Mr Kibling, my principal reason for rejecting his appeal in relation to the Chairman's Notes - namely that the delay and inconvenience which it would have caused weighed against the pessimistic view I took of his perversity argument having any prospect of success whatsoever - has to a large extent been outflanked. It would not, he said, cause significant delay or impose upon the Chairman a significant burden were we now to invite him merely to approve Notes of Evidence given in transcript which were taken at the hearing.

Mr Kerr on behalf of the Respondents both before us and below, suggests that we should hear those parts of Mr Kibling's appeal which do not depend upon Notes of Evidence. Should Mr Gilbert subsequently succeed in his application to the Court of Appeal, the Court of Appeal would have power to remit for consideration by this Tribunal Mr Gilbert's perversity arguments. And, says Mr Kerr, whatever maybe our decision on the substantive appeal, there is at least a possibility that the losing party will go to the Court of Appeal, in which case that would be a convenient occasion for Mr Kibling to advance any arguments that he might still have relating to the Chairman's Notes.

We have considered this matter with some care. I have provided my colleagues with a copy of my Judgment on Monday and they have been good enough to say that they agree with it but it seems to us that quite different considerations apply when one is considering ordering not the transcription by the Chairman of his Notes of a three day hearing, but his approbation of a typescript of those notes taken by a shorthand-writer or by a word processor in the course of the hearing. Accordingly we have come to the conclusion that notwithstanding our very deep reservations about the prospects, if any, which Mr Kibling's argument on perversity may have, we think that justice requires in the new circumstances, that we should direct that a transcript of the evidence given at the hearing should be prepared by the Appellant's solicitors and submitted to the Chairman for his approval. If that approval is forthcoming, that transcript can be used for all purposes in the course of the appeal. It is implicit in what we have said that we have taken the view unanimously that it would not be appropriate, notwithstanding Mr Kerr's submission to the contrary, that we should entertain part of the appeal today. We think there is substance in Mr Kibling's argument that even that part of his appeal might be illuminated to some extent by the Notes of Evidence.

Accordingly if there is to be a record of the evidence before whatever Employment Appeal Tribunal considers the appeal, we think it is sensible and practical that they should have the benefit of the notes. We are unanimously of the opinion that this appeal should be adjourned to a date to be fixed as soon as practicable after approval by the Chairman of the Notes.

Mr Kerr suggests that in those circumstances a note of Mr Gilbert's evidence should also be available for use at the appeal. He says that his client would or might be prejudiced by the absence of such a note. In the exceptional circumstances of this case, which should not be regarded as creating any precedent, we agree. Accordingly we make a decision for the production of the Chairman's Notes of Mr Gilbert's evidence.