United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 764_94_1811

Appeal No. EAT/764/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 November 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS C HOLROYD

MR S M SPRINGER MBE

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MR M RAWLEY          APPELLANT

CAMELOT BARTHROPP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR I McCABE

(of Counsel)

Messrs Barker Austin

Solicitors

28 Hanbury Street

Spitalfields

London E1 6QR

For the Respondents MR A DYER

(of Counsel)

Martin B Radcliffe

Solicitor

1 Savoy Hill

London WC2R 0BP


 


MR JUSTICE MUMMERY (PRESIDENT): This appeal has arisen in unusual circumstances. Proceedings for unfair dismissal have been brought by Mr Rawley against Camelot Barthropp Ltd. At an adjourned hearing of the case before the Industrial Tribunal at London (South) on 7 June 1994, the Chairman made a ruling, which is the subject of this appeal.

He ruled against the admission of certain evidence which Mr McCabe, who represented Mr Rawley, wished to adduce. The Chairman's ruling was that that evidence was not relevant. He concluded written reasons for his ruling by saying:

"Evidence in tribunal cases claiming unfair dismissal must be kept within reasonable bounds, or cases will become even longer than they are at present, and prohibitively expensive, to the detriment of all parties who use these Tribunals."

It appears from the written ruling that, after a brief discussion during which Mr McCabe seemed unwilling to accept the Chairman's ruling, the Chairman told Mr McCabe that he must accept it or appeal against it. We are told that a heated atmosphere had been generated in the Tribunal by this stage.

Mr McCabe decided to appeal. The Tribunal adjourned the hearing without hearing any more evidence.

In the notice of appeal dated 8 August 1994, reference is made to the written ruling notified to the parties on about 4 July. The grounds of appeal are that the Industrial Tribunal was wrong in law in excluding the evidence, which was the subject of dispute. The grounds then set out the issues to which, it is argued, the excluded evidence is relevant.

At the hearing of the appeal today both sides have been represented by Counsel, as they were in the Industrial Tribunal. Each side, with the assistance of skeleton submissions, sought to make detailed arguments as to the correctness or otherwise of this ruling. We do not propose to go into the details of these arguments. The view we have formed is that there were two errors of law in relation to the ruling.

The first error is that it is common ground that the Chairman made the ruling on evidence without consulting the lay Members of the Tribunal. He had no power to do this on his own. What was proceeding at London (South) was a hearing of the complaint of unfair dismissal before a Tribunal composed of three Members. It is clear from Rule 10 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 that when a decision is made by a Tribunal it must be made by all the Members or, failing agreement, by the majority. This is not a matter on which the Chairman alone had power to act. For that reason alone, the ruling does not have any legal force. It is not a ruling of the Tribunal.

Secondly, whatever was said to the Chairman by the Counsel or by the Counsel to the Chairman, it is clear from the last page of the ruling at paragraph 12 that, when the Chairman excluded the evidence, he told Mr McCabe that he must accept his ruling on it or appeal against it. It was in those circumstances that the appeal was brought before the hearing had been concluded.

In our view, the normal procedure, where a ruling is made on the admissibility of evidence, is to continue with the hearing until it is completed. If the final decision is favourable to the party against whom the ruling was made, the status of the ruling becomes academic. If the final decision is adverse to the party against whom the ruling is made, that party may appeal on a question of law to this Tribunal and may include, as grounds in the appeal, that the Tribunal had acted in error of law in excluding relevant probative evidence. It would be for this Tribunal to decide whether the evidence excluded was relevant and probative and whether its exclusion was an error of law.

It is not the usual procedure to appeal against interlocutory rulings in the course of a Tribunal hearing or to adjourn the hearing until the appeal is resolved. It is, in our view, an error of law on the part of the Tribunal to require a party against whom the Tribunal has ruled, "You must accept the ruling or appeal against it".

For those two errors we decide on this appeal to make no order, save that the case is remitted to be dealt with by a different Tribunal to be chosen by the Regional Chairman. We have been asked by each side at various times during the hearing to express views on the substantive correctness of the ruling. We do not do that, because, if the matter is to go back to the Industrial Tribunal differently composed, it would be wrong for us to pre-empt the discretion that that Tribunal would exercise during the course of the hearing to make decisions admitting or excluding disputed evidence.

The discretion in relation to the exclusion and admission of evidence is in the Tribunal, not in this Appeal Tribunal. It is clear from Rule 9 and Rule 13 that this is so. Under Rule 9:

"(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

(2) a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal.

...

Rule 13 Miscellaneous powers

(1) ... a tribunal may regulate its own procedure."

Our function is to hear appeals from decisions where a question of law may arise, not to tell Industrial Tribunals how to conduct hearings which are not yet completed. If the new Tribunal, during the course of the hearing, makes a ruling which is objected to, the correct course will be for the Tribunal to carry on to conclusion, give its decision and for the aggrieved party to appeal. We would then decide whether there has been an error of law by the Tribunal.

For those reasons we do not give any decision on the admissibility or otherwise of this evidence.

There was also a dispute as to whether we should remit this matter to the same Tribunal or to a different one. The point made by Mr Dyer, on behalf of the Respondents, was that his clients would be prejudiced if this matter had to start again before a different Tribunal. He said that there had been part of a day spent in February on the hearing and another hour to one-and-a-half hours on 7 June. Two witnesses had completed evidence. The Applicant himself had started to give evidence. This would be lost if the matter had to start again.

We appreciate that, but it is a matter that goes to costs. Under Rule 12 of The Industrial Tribunal Rules, the Tribunal can make an order for costs against a party who:

"... in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably ..."

The proceedings before the Industrial Tribunal have not yet been concluded. It will be open to the new Industrial Tribunal to entertain an application for costs, which relate to the whole or part of the proceedings, even though some of those costs may have been incurred before a different Industrial Tribunal. The costs that may be awarded are the costs of the proceedings. The proceedings are the same, whichever industrial tribunal they are being heard by. Mr Dyer invited us at one stage to make an order for costs in relation to the proceedings so far. It would not be appropriate for us to make orders in relation to costs in the Industrial Tribunal. We can hear appeals against orders for costs which have been made and orders which have been refused, but we have no original jurisdiction to order costs in the Industrial Tribunal. So far no order for costs has been made in the Industrial Tribunal.

The reason we send this matter back to the Industrial Tribunal differently constituted is that it is clear from what we have been told that this matter cannot be satisfactorily continued before the same Tribunal. Ill feeling has been generated. Some things have been done, such as the Chairman acting on his own, which should not have been done. It would be in the interests of justice, in our view, for this matter to start afresh. Any prejudice that has been suffered can be compensated in costs, if it is appropriate to order them.

One final matter. This is not a matter of order by us. It is a matter of suggestion. In our view, the task of the new Tribunal might be eased if these parties exchanged in advance of the hearing all the proofs of evidence of witnesses. It would enable the parties to know in advance to what parts of the evidence objection was taken. Orderly arguments could be presented to the Tribunal. It would also be easier for the Tribunal to rule on these matters if they had had a prior sight of what was intended to be adduced in evidence. If the parties do not want to do this, there is nothing we can do about it. We just put it forward as a suggestion which may help a more smooth hearing in the new Tribunal.

The only order we make today is no order on the appeal, save that this matter is remitted to a different Industrial Tribunal selected by the Regional Chairman.

In the spirit with which this litigation seems to be conducted, we have heard applications by each side that the other should pay the costs of the appeal. There are no grounds for making an order for costs against either side. Our powers to order costs are limited by the Rules. They are confined to cases where it appears to us that the proceedings were unnecessary, improper or vexatious or where there has been unreasonable delay or otherwise unreasonable conduct in bringing or conducting the proceedings. It appears to us that, in view of the two errors of law which we have identified in relation to the ruling by the Chairman, it was not unnecessary, improper, vexatious or unreasonable for this matter to be brought here in order to secure a decision on the ruling.

Finally, the Members of the Tribunal wish me to say this: it is possible and preferable to conduct contentious cases professionally without unnecessary ill-feeling and aggression. We hope that at the remitted hearing the parties' advisers will do all they can to ensure that the case on each side is presented without unnecessary personal animosity between them.