United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 216_93_2810

Appeal No. EAT/216/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 October 1994

Before

THE HONOURABLE MR JUSTICE PILL

MR K M HACK JP

MR D G DAVIES

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MR W BATHGATE          APPELLANT

BRITISH COAL CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

ON BEHALF OF THE APPELLANT

For the Respondents NO APPEARANCE BY OR

ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE PILL: The Applicant, Mr William Hamilton Bathgate appealed against a majority Decision of an Industrial Tribunal held at Sheffield on 25 January 1993, whereby they held that he had been fairly dismissed by his employers, British Coal Corporation.

That appeal is now withdrawn save for the question of costs and the Appeal now comes before the Court upon the Application of the Respondents that they should have an Order for costs.

It was only earlier this month that Solicitors now appearing for the Appellant indicated that the Appeal would not be pursued. Both parties have indicated that the Application for costs will be dealt with on paper. The Application of the Respondents is based upon the late notification of the proposal to withdraw the Appeal.

We have decided that we should not deal with the matter today and for this reason. Both parties have set out in their letters to the Tribunal a chronology. However, that chronology differs in one important respect. The Appeal required consideration of the Chairman's Notes of Evidence, that is common ground, and it was upon consideration of the Notes of Evidence that Counsel has advised Mr Bathgate that the Appeal has no real prospect of success.

Brian Thompson and Partners now act but it appears from their chronology that they were not instructed until February of this year. In their letter they state this:

"Both parties had to do the same and both could realistically only do this [that is assess the prospects] after all relevant papers (which in this case included the Chairman's Notes of Evidence) became available".

They state that the Notes of Evidence were received on 8 August of this year and allowing for the time of year and the need to instruct Counsel, they say that in all the circumstances it was not unreasonable at least for present purposes that it was October before the decision was taken. However, the Respondents' Solicitors, Nabarro Nathanson, in a letter of 12 October state at paragraph 6 that:

"The Chairman's notes of evidence were sent to the parties by the EAT on or about 6th May 1993".

That is something like 15 months earlier than the Appellant's Solicitors say that they received them.

I should add that enquiries have been made with the staff of the Tribunal and it does appear that the Nabarro Nathanson date is the correct one, save for this. On the Appellant's side the Notes of Evidence were sent not to Solicitors, but to the NUM. Clearly there has been a reorganisation which meant that the present Solicitors did not receive the papers at that time. However, we do not propose to go into the merits of the matter at this stage. In our view, Brian Thompson and Partners should have an opportunity to state why it was that they did not receive the Notes of Evidence until as late as August of this year. We propose to adjourn the matter to enable them to make any further representations which they seek to. Their letter should be sent to Nabarro Nathanson and Nabarro Nathanson's letter should be sent to them.

I reserve the matter to myself and it must be dealt with within the next two weeks, but the Tribunal need not, with the agreement of my present colleagues, be as at present constituted. The Application for costs is adjourned on that basis.