United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 680_94_1010

Appeal No. EAT/680/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 October 1994

HIS HONOUR JUDGE J HULL QC

MR K M HACK JP

MRS T MARSLAND

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MR A POTTS          APPELLANT

D NICHOLSON & D WOOD T/A REBOUND MOTOR PARTS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE HULL QC: This is a case where Mr Potts was employed as a sales representative by the Respondents. He was first employed by them in March 1990 and he was eventually dismissed on 16 August 1993. There is no need to go into the merits and arguments about that. Unhappily, the parties did not get on and there were various complaints and cross complaints and he was dismissed. So he complained, as of course he was entitled to, to the Industrial Tribunal on 21 September 1993, that he had been unfairly dismissed. That was his case.

The claim was resisted by the Respondents and therefore a hearing took place. That was not until 12 May of this year. Mr Potts' solicitor could not attend the hearing because he was on holiday, we are told, and therefore rather than ask for an adjournment counsel was employed and so each side was represented by counsel. There was Mrs Cranfield for Mr Potts and Mr Hall-Smith for the Respondents and the morning of the first hearing was occupied by hearing evidence from one of the Respondents' witnesses.

During this hearing, Mr Potts tells us, he was suffering from considerable stress as a result of his diabetes. He controls that with insulin. He found that he had high blood sugar and twice in the course of the hearing he found it necessary to ask for a few minutes whilst he injected himself with insulin. As a result of all that his blood sugar of course went down and by lunch he was apparently feeling in the opposite condition of having very low blood sugar and therefore considerably disadvantaged when it came to considering any matters. One knows of course that litigation of any sort is very stressful for people and for anybody suffering from diabetes, no doubt even more so. He said he was not able, in these circumstances, to give proper consideration to his own interests.

An offer was made by the Respondents to settle the case; on the face of it by no means a frivolous offer, but a serious offer. It was therefore the duty of Mrs Cranfield first of all to consider the offer, then to give advice on it and to seek Mr Potts' instructions. That was not a duty which she could avoid. Counsel always have to do that if an offer is made, however sensible or silly it may seem, and that evidently happened. What Mr Potts says is that he simply was not in a condition to appreciate the merits of it, he was advised to accept and being in this condition with his low blood sugar, did accept. No doubt any lawyer advising a person has regard to whether their advice is going in properly and whether the client is appearing to give instructions clearly, one knows from long experience as a lawyer that very frequently the client is in a considerably upset state at this point.

Unlike lawyers the client is not familiar with litigation and at a moment of crisis like this, as it always must be if an offer is made which may end the proceedings, the client very much needs advice and often is in a very poor condition to appreciate all the complications and difficulties of the case. Indeed, it is often quite impossible for an ordinary person, unfamiliar with litigation, to appreciate all the consequences; but the advice was given and the advice accepted and therefore, with the blessing of the Tribunal, the offer was accepted. We do not know, we have not been into it, whether it was a good offer, a well judged offer, or whether it was rather a mean offer. We do not know what prompted the advice which was given. At any rate it was accepted and so the complaint was compromised.

When he went home Mr Potts fortunately recovered from this episode and thought about it and very shortly afterwards decided that he would not have wished to accept the sum that was offered. He did what he felt he was entitled to do. He applied for a review to the Industrial Tribunal and on 2 June of this year the Industrial Tribunal refused to review the case. What was said by the Chairman was this:

"1. The Tribunal did not hear the case in full due to the parties reaching an agreement, through respective Counsel, on terms to dispose of the complaint".

Then he said:

"2. The Applicant now applies for a review of the Decision to dismiss the Originating Application on withdrawal of his complaint on the basis that he is diabetic and, due to his condition became confused at the Tribunal Hearing. On getting home the Applicant regretted the acceptance of the settlement.

3. The only ground under Rule 11(1) of the 1993 Rules of Procedure on which the Applicant can rely is that the interests of justice require such a review.

4. In fact it is in the interests of justice, especially where the parties are legally represented, that settlement should be final and therefore it would not be in the interests of justice for the Application for a Review to proceed".

That was the view of the Chairman. One has to remember that in spite of what Mr Potts says (and certainly we accept he says it in perfectly good faith) his own counsel clearly thought that he was in a condition to give his assent to the settlement. The Tribunal must have thought so and all concerned must have thought that it was, at any rate, a tolerable, a reasonable settlement of the matter, and that Mr Potts was duly giving his consent.

In these circumstances, the law has to take a firm line because otherwise there would never be an end of it. And the rule is this: that in the absence of fraud (and no such fraud is suggested here) the only way in which an order by consent can be upset is by an independent action. You cannot go back to the Judge or Chairman of the Tribunal a week or a fortnight later and say, "I gave my consent to that but now I wish I hadn't. I was not feeling well. I was worried about this or that and it turns out I was wrong about that. I received bad advice". That sort of thing simply will not do. What you have to do is to launch separate proceedings to upset the agreement and say that the agreement was reached at a time when you were in no position to give consent, or something of that sort. If it were not so, there would be no end to these matters.

Here, the position is that Mr Potts at any rate appeared to be in a position to give his consent and did give his consent. If his representative, his solicitor or his barrister, did not treat him with proper care, then that might well be a proper subject of complaint. If the other side were overbearing or in some way cheated him, he would have a cause of complaint. But that could not be brought in this way by asking for a review.

The authorities on this are really well settled. This is a matter where the law has to adopt what is called "an objective standard". If somebody of age and of right mind appears to be consenting to something, then he is taken to consent to something and it will not do later for him to say, "I was in some sort of episode or something of that sort which prevented my consent being genuine in the way that it would be if I were feeling fully fit".

Indeed, it is almost common experience for people engaged in litigation to be in the state of mind which Mr Potts describes, although of course not aggravated in the way he says his was by diabetes. That is why, when barristers and solicitors are employed, great weight must be given to anything that is done on their advice, because it is of course given bona fide for the benefit of the person concerned and that is why nothing but an allegation of bad faith could avail to upset an order like this.

We have, with Mr Potts' assistance of course, endeavoured to see whether there is any point of law here and although we have tried very hard and discussed the matter among ourselves, we are quite unable to find any point of law on which Mr Potts could possibly succeed in his appeal against the refusal to review the consent order.

In those circumstances, though of course with sympathy for Mr Potts, we have to say that this appeal must be dismissed at this stage rather than proceeding to a full hearing.