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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Arab Republic Of Egypt v Gamal-Eldin & Anor [1994] UKEAT 482_94_1410 (14 October 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/482_94_1410.html
Cite as: [1994] UKEAT 482_94_1410
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR J D DALY
MR J C RAMSAY
(2) MR M EL-ABIARY
JUDGMENT
Revised
APPEARANCES
For the Appellants MS K WALDEN-SMITH
(Of Counsel)
Jansons
7 Portman Street
London
W1H OBA
For the Respondents MR P BIBBY
Free Representation Unit
49-51 Bedford Row
London
WC1R 4LR
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by the Arab Republic of Egypt against the decision of the Industrial Tribunal held at London North on 10 March 1994.
The purpose of the hearing was to decide a preliminary question on jurisdiction to entertain two applications, both brought by drivers formerly employed in what is described as the Medical Office of the Egyptian Embassy at 47 Longridge Road, London, SW5 9SD.
Both drivers presented applications to the Industrial Tribunal on 13 April 1993 complaining that they had been unfairly dismissed on about 14 or 15 January 1993. At the hearing before the Industrial Tribunal the Applicants were represented by Mr Bibby from the Free Representation Unit. The Arab Republic of Egypt was not represented and there was no attendance from anyone at the Embassy.
The hearing had been adjourned from an earlier date in October 1993. There had been no attendance on behalf of the Republic at the earlier hearing. For Reasons notified on 7 April 1994, the Tribunal decided that, having regard to the provisions of Section 4(2)(a) of the State Immunity Act 1978, a Tribunal had jurisdiction to consider the Applicants' complaints of unfair dismissal.
The Tribunal explained that it was a jurisdictional hearing at which evidence had been heard from both Applicants and others identified in paragraph 2 of the decision. The Tribunal made findings of fact as to the employment of the Applicants in the Medical Office. They were both Egyptian nationals resident in London at the time of their appointments. They had been appointed under contracts made in the United Kingdom for work to be wholly performed in the United Kingdom. They both held Egyptian and UK passports.
It is not necessary to examine details of the facts. They deal with the situation of the Medical Office in relation to the Embassy and contain a description of the activities of the Medical Office. The Tribunal referred to the circumstances in which the question of state immunity had been raised and addressed itself to the relevant statutory provisions.
The Tribunal came to these conclusions. First, the Medical Office were engaged "within an area of activity trading or commercial, or otherwise of a private law character", which under Section 4 would give the Tribunal jurisdiction to consider the complaints. Secondly, the Tribunal stated that there was no evidence before them that the Applicants were members of the Mission. They denied being members of the Mission and, accordingly, the Tribunal found they were not members of the Republic's Diplomatic Mission.
Thirdly, the Tribunal found, having considered some correspondence between the head of the Medical Office in June and August 1993, that, the question of immunity was not raised at that stage and there had been a submission to the jurisdiction, because steps had been taken in the proceedings relating to the merits. The Republic of Egypt was dissatisfied with that decision and appealed by a Notice of Appeal dated 18 May 1994.
The hearing of the appeal began in confusing and highly unsatisfactory circumstances. The Appeal Tribunal received a letter on 11 October from the solicitors acting for the Republic of Egypt, Messrs Jansons, formally confirming that there was no intention to proceed with the appeal and that the appeal was withdrawn.
The next day, the Appeal Tribunal received another letter from the same solicitors stating that, since the despatch of the previous letter, two further pieces of evidence had come into their hands and referred to counsel. As a result of advice from counsel, the instructions were now to proceed with the appeal and accordingly, a request was made that the letter of withdrawal be ignored and the withdrawal cancelled.
The following day, yesterday, a bundle of documents arrived in the Tribunal consisting of 68 pages. As far as we have been able to discover from Ms Walden-Smith, who appears for the Republic of Egypt, these documents have been produced by her solicitors. This morning, the members of the Tribunal were provided with a skeleton argument on behalf of the Appellants, of today's date.
Ms Walden-Smith offered apologies for all these matters. It is a matter of serious concern that confusion has surrounded the status of this appeal over the last few days. Concern is increased by the fact that an application is now made by Ms Walden-Smith for the hearing of the appeal to be adjourned. This morning was the first time that such an application was made. Before this morning, there had only been a hint in the letter of 12 October that the Republic of Egypt would be happy for the hearing to be re-listed at a later date, if more convenient.
All these circumstances are prejudicial to the Applicants who were dismissed as long ago as January 1993. They now find, after a number of adjournments and hearings, that they are faced with a further application for an adjournment and in circumstances where the dispute still is, not whether they were unfairly dismissed, but whether the Industrial Tribunal has jurisdiction to hear their claim that they were unfairly dismissed.
Ms Walden-Smith asks for the appeal to be adjourned as she wishes to bring forward evidence from the present Medical Officer at the Medical Office at the Embassy and from his predecessor relevant to the question of jurisdiction. She wishes to lodge, if further documents are found, such as communications with the Foreign and Commonwealth Office, an affidavit from her solicitor putting those documents of evidence. She also wishes to adduce certain other documents which are at present available, but are not in English and will have to be translated (I refer specifically to the contracts of employment) or yet further documents not yet identified, which may be relevant to the question of state immunity.
As a general rule there is one chance to bring forward evidence, that is at the hearing before the Industrial Tribunal. It is the duty of every litigant to bring forward all his evidence together at the same time, not in bits and pieces. Only in exceptional cases will a party be allowed to adduce new evidence on an appeal which was available to be brought at the hearing before the Industrial Tribunal.
Strict tests are laid down. The rule is that a party is not entitled to bring forward evidence on an appeal which was available, or could have been obtained by the use of reasonable efforts for use at the Tribunal. If strict rules did not apply it would be open for litigants to play "fast and loose" with the system of adjudication by bringing forward witnesses and documents, at various times, according to what suited their tactical conduct of the dispute.
Ms Walden-Smith says this is an exceptional case. It is a question of state immunity. That always raises delicate and sensitive questions touching on the comity of nations. She says it is an exceptional case because there is a good reason why her clients did not attend or were not represented at the hearing with this evidence. She explains, by reference to an earlier decision of the Industrial Tribunal held at London South on 30 September 1992, that a claim to immunity on behalf of the Medical Office had been upheld without any attendance on the part of the Republic of Egypt before the Industrial Tribunal.
It had been upheld on the basis of the chairman's decision that the Medical Mission was the Embassy, not an office, agency or establishment which would come within the meaning of Section 4(3). That case was Mr A.M. Unis v Egyptian Embassy. The belief on the part of the authorities in the Embassy, or those advising them, was that there was no need to attend at the hearing on 11 March because, if the experience of Mr Unis was repeated, the Tribunal would hold that there was no jurisdiction to entertain the claim.
Ms Walden-Smith is prepared to provide evidence to support the explanation for non-attendance. She says, by reference to a number of decisions in her skeleton argument, that we are not dealing here with ordinary facts found by the Tribunal. We are dealing with facts which go to the jurisdiction, "jurisdictional facts". She referred to the case of House v Emerson Electric Industrial Controls [1980] ICR 795 for the proposition that this Tribunal is justified in hearing new evidence relating to matters of jurisdiction. A Tribunal either has jurisdiction or it does not. It cannot give itself jurisdiction it has not got by reaching a decision which may not be a correct decision on the facts. For those reasons she wishes to bring forward evidence to demonstrate that the Tribunal's findings of fact are incorrect and that, if a correct appreciation existed as to the true factual position, the Tribunal's conclusion would be that there was no jurisdiction.
Mr Bibby, on behalf of the Applicants, submits that no adjournment should be granted. He points out, and this cannot be doubted, that the adjournment will prejudice his clients. The prejudice will be yet further delay in the progress of their complaints. He submits that there is no basis for granting an adjournment. No new matters have been raised. The only matters raised are by way of questioning the Tribunal's conclusions of fact. This is an attempt to re-open a decision on the facts. This Tribunal has no jurisdiction to do that. We can only hear appeals on points of law. He also points out that the questions raised under Section 4, even if favourably resolved for the Republic of Egypt, may well be irrelevant in any event because the Tribunal found that, by entering into correspondence on the merits, there had been a submission to the jurisdiction. He made a submission that since the decision of the House of Lords in Arinminic there is no difference between jurisdictional facts and any other facts. Further, Ms Walden-Smith was vague as to exactly what further documents were likely to be produced as a result of an adjournment.
We have not found this an easy case. On balance, we have decided that there should be an adjournment. There is good ground for treating cases on immunity of the State, Diplomats and international organisations as in themselves exceptional. They raise areas of law and considerations of sensitivity of a different kind than those normally dealt with in employment disputes. There are good grounds for saying that special care must be taken to see that the right decisions are made on fact after a full investigation. There has not been a full investigation of the facts. The Tribunal only heard one side, not through any fault of it or any fault of the Applicants. No final decision should be made on this question until there has been a full investigation.
We propose to adjourn the hearing of this appeal for evidence to be put in on both sides and direct that the matter be re-listed for hearing. In order to save further time and delay this Tribunal will itself decide the question, even if it involves determinations on fact.
The Tribunal has power to do this by way of attendance of witnesses, production of documents and the hearing of oral evidence, if it is appropriate. Rules 27 and 28 of the Employment Appeal Tribunal Rules 1993.
If this Tribunal were to wash its hands of the matter and remit the whole case to the Industrial Tribunal, there would be a further delay in a hearing before the Industrial Tribunal and then, whatever the result, there might yet be another appeal to this Tribunal, all involving further delays and expense.
The Tribunal will resolve this dispute on law, as well as any facts that may be involved. These conditions will be attached to the adjournment of the appeal: that the Arab Republic of Egypt will have four weeks in which to serve on the Tribunal and on the Applicants, or their representative, whichever is convenient, affidavit evidence from the present Medical Officer and his predecessor and from the Republic's solicitors, affidavits relevant to the issue of State Immunity, waiver of that immunity by submission to the jurisdiction and the reasons for non-attendance at the Industrial Tribunal hearing; that leave will include leave to produce, by way of exhibits to the affidavits, any relevant documents. For the sake of complete clarity I direct that that includes any correspondence that there was relating to this whole matter between the Republic and their solicitors, on the one side, and the Foreign and Commonwealth Office, on the other.
We will grant leave for the Applicants to cross-examine any deponent, provided that due notice is given of any wish to cross-examine. We also grant leave, and we will hear submissions about the length of time needed, for the Applicants to serve evidence in answer to any affidavit evidence and documents served by the solicitors for the Republic.
When the evidence is complete the matter is to be re-listed for hearing. The estimated length of hearing is one day, taking into account that there may be cross-examination and extended legal argument. That estimate may have to be revised depending on the bulk of the affidavits and documents filed and on the extent to which cross-examination is sought. Any translations of documents must be authenticated in the customary form.
There may be other points of detail on which the parties wish to address us. Those are the directions we give. It may assist Mr Arbuckle, the associate, if I direct both counsel to agree a minute of the directions, given since they are far more elaborate than is normally the case.
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We will now give our decision on costs. For reasons fully explained in the judgment given earlier the appeal is adjourned on terms. We have an application by Mr Bibby, on behalf of the Applicants (the Respondents to the appeal) for costs. The application is made under Rule 34 of the Employment Appeal Tribunal Rules which provides, among other things, that the jurisdiction as to costs may be exercised whether there has been unreasonable conduct or unreasonable delay in bringing or conducting the proceedings.
In those circumstances, the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit, of the costs or expenses incurred by that other party in connection with the proceedings.
The Tribunal may, if it thinks fit, make an order either to assess the sum to be paid or direct it to be assessed by the Taxing Officer. In this case Mr Bibby makes two points on unreasonable conduct in relation to this appeal by the Appellants. First, the circumstances described in our decision. Earlier this week the Arab Republic withdrew their appeal and then cancelled their withdrawal of the appeal. In consequence of this change of mind there had been submitted to the Tribunal, unnecessarily as it turned out, a special written submission on the part of his clients dealing with costs on the basis of a last minute withdrawal of the appeal. Secondly, he says there has been unreasonable conduct in relation to the last minute application for an adjournment of the appeal in order to gather and serve evidence which could have been gathered and produced at a much earlier stage. An adjournment has been granted on that application. In the discretion of the Tribunal it was unreasonable to leave the application to the last minute. No reason has been given for not having the evidence and documents organised at an earlier stage, so that the appeal could have been effectively argued.
We are sympathetic to the application. It is highly inconvenient and often a waste of costs for a party to make last minute application without warning, whether by way of withdrawing an appeal or by seeking a late adjournment.
We are unable to make a precise order for costs because of lack of information.
Mr Bibby is here from the Free Representation Unit. He charges no fee. The Free Representation Unit normally makes no charge to the people it represents. There is, however, a firm of solicitors instructed by the clients (Aaronson). They have been giving instructions to Mr Bibby.
The position may, therefore, be that costs have been incurred, or a liability has been incurred by the clients in relation to the solicitors. We propose to make an order that the Appellants are to pay the costs of this adjournment and any costs which have been incurred by the Applicants in relation to the withdrawal of the appeal and the cancellation of that withdrawal. Those costs are to be assessed by the Taxing Officer.
The Taxing Officer will be in a position, before he makes an assessment, to enquire from the Applicants precisely what costs they have incurred in connection with the adjournment.