United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 912_93_0103

Appeal No. EAT/912/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MS S R CORBY

MR J H GALBRAITH CB

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IN CAR INSURANCE REPLACEMENT SERVICES LTD          APPELLANTS

(1) MR E G GREEN (2) MISS C JONES          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR J BRIERLEY

(SOLICITOR)

Jonathan Brierley

Solicitor

70 De Burgh Street

Cardiff

CF1 9LD


 


MR JUSTICE MUMMERY (P): This is the Preliminary Hearing of an appeal against the decision of the Industrial Tribunal sitting at Cardiff on 24 June and 9 September last year. For reasons notified to the parties on 23 September, the Tribunal unanimously decided that In Car Insurance Replacement Services Ltd had discriminated against Mr Eric Green and Miss Ceri Jones on grounds of sex and race. They made an order that Mr Green should be paid compensation of £15,464 and Miss Jones compensation of £8,302.

In Car Insurance Replacement Services Ltd were dissatisfied with the decision and a Notice of Appeal was issued on 4 November 1993. The Notice of Appeal was prepared on behalf of the Company by Peninsula Business Services Ltd who had represented the Company at the Industrial Tribunal hearing. The Grounds of Appeal related solely to the awards of compensation. The points taken were, first, that in the case of Mr Green the Industrial Tribunal erred because they failed to find that he had not properly mitigated his loss and that only half the benefit had been deducted.

In both cases a second ground was stated; that is that the sum awarded in respect of injury to feelings was excessive. The sum was in each case £7,000. The third point was that, in both cases, although taking into account the monetary benefit received by the Applicants in respect of assessment of compensation, total benefits were not taken into account.

There was a change of representation. The new representatives of the Company sought to do a number of things; first to obtain a review of the decision from the Industrial Tribunal and, secondly, to pursue more points on the appeal. An application was made on 4 October 1993 for a review. That application was made by Peninsula Services raising points on the failure to apply the recoupment regulations. The Industrial Tribunal refused to grant that review on the ground that it had no reasonable prospect of success. That decision was given on 7 October. The new representatives sought another review by letter of 1 February 1994 on the basis of fresh evidence which had come to light materially affecting the credibility of the Applicants and their witnesses. Another ground was that the Tribunal had failed to comply with the rules of natural justice in preventing the Company from cross-examining on a number of documents.

On 9 February the Company's representative was notified that that application was refused on the grounds that there were no reasonable prospects of success.

The Company now wishes to make amendments to the Notice of Appeal to raise points similar to those which were the subject of the second application for a review. Mr Brierley, who now represents the Company, has put in a proposed Amended Notice of Appeal, which, in addition to the points on compensation, raises the following additional points: that there were errors of law on the part of the Tribunal in failing to conduct the proceedings and the subsequent reviews of the initial decision in accordance with the rules of natural justice. There are also complaints of errors of law in the failure of the Tribunal to take properly into account cross-examination as to credit of witnesses or properly direct itself as to the nature and purpose of cross-examination as to credit. Finally, a ground of appeal is that the Industrial Tribunal is not safe or satisfactory because one of the prime witnesses for the Applicants in the Tribunal gave perjured evidence which was erroneously relied upon by the Tribunal.

Those points are elaborated. A complaint is made that four witnesses gave evidence to the Tribunal. Their evidence was adverse to the case of the Applicants, but the evidence was not referred to in the decision of the Tribunal. Complaint is made that there was a memorandum produced by a Mrs Callan, signed by members of the staff at the Company's business but that document had not been seen by the Company prior to the hearing. Consequently the Company had no proper opportunity to make enquiries about the validity of the document. It is now discovered, it is said, that the document is false. Then a puzzling complaint is made that the Company obtained professional representation and that at no time did the representative request an adjournment to make enquiries with regard to that document. Evidence was given by Mrs Callan that she was a chartered accountant. There is now available evidence to show that she was not. Finally, matters were put to the Applicant, Mr Green, in cross-examination in an attempt to discredit. The Tribunal wrongly failed to take account of the credit worthiness of him as a witness.

In deciding whether this matter should go forward to a Full Hearing and whether we should allow the proposed amendments to the Notice of Appeal, we must ask ourselves what points, if any, on this appeal are arguable errors of law on the part of the Tribunal?

This Tribunal has only jurisdiction to entertain appeals on grounds of error of law. If at this stage an Appellant cannot satisfy us that there is an arguable point, the appeal must be dismissed. There would be no point in pursuing an unarguable point to a full hearing. Having heard Mr Brierley's submissions, we have come to these conclusions on the various points.

First, looking at the original Grounds of Appeal, the complaint about the Tribunal's decision with mitigation does not raise a point of law. The Tribunal dealt with the point of mitigation of loss in paragraphs 40 and 41 of the Decision. They came to the conclusion that it was not unreasonable, in the circumstances, for Mr Green not to have applied for jobs and thereby mitigate his loss. That decision is a question of fact. It does not raise a question of law. The appeal cannot go forward on that ground.

Secondly, as to the sum said to be excessive, for injury to feelings, we have reached the conclusion that an arguable point of law has been raised; substantial sums were awarded under this head - £7,000 to each Applicant. It is arguable, that in coming to that figure, the Tribunal may have misdirected itself as to what facts were legally relevant to the assessment of compensation. We have in mind in particular the facts stated in paragraphs 43 and 44 of the decision. The appeal will therefore be allowed to proceed on that ground. There can proceed with it any complaints as to the failure to deal in the appropriate way with the benefits and how they should be taken into account.

As to all the remaining matters set out in the draft amendments to the Notice of Appeal, we have reached the conclusion that none of them raises an arguable error of law on the part of the Tribunal. Under all these heads the complaints are either as to matters of fact, on which there is no appeal, or on what may be called matters of new fact, which for one reason or another were not raised before the Tribunal. The Company wished to raise them on the Applications for Review, which have not succeeded, or on the appeal. The point really comes down to this: that the matters of fact are all matters which could, by reasonable enquiry, have been established for use at the Tribunal in evidence or as material for cross-examination.

The Company complains that it was not properly represented at the hearing by Peninsula Business Services Ltd. Mr Brierley has told us that the Company will be taking proceedings for negligence against them as a result of the inadequate representation. Inadequate representation and consequent failure to bring forward all the relevant facts at the hearing before the Tribunal are not errors of law on the part of the Tribunal. There may be errors on the part of the representatives; there may be errors on the part of the person whom they representing in relation to the preparation and conduct of the case; we are only empowered to deal with errors of law in the decision of the Tribunal. If the Tribunal came to a conclusion on the material before them which a reasonable Tribunal would have come to then, that cannot be assailed in this Tribunal as a matter of law.

It is not sufficient to say "If the Tribunal had then had the material which is now available they would have come to a different conclusion". That sort of argument would lead to never-ending applications for reviews and appeals. The obligation of a party is to bring forward all the facts and all the evidence available to him by the use of reasonable efforts for use at the hearing of the complaint. The only exception allowed is if that party could not, by the use of reasonable efforts, have obtained material for use at the hearing. None of this material comes within that category.

For those reasons we shall not allow amendment to the Notice of Appeal to raise the points in sub-paragraphs (ii) to (vi) of paragraph 3 of the notice or (d) to (h) of paragraph 5 of the notice. We shall not allow the case to proceed in respect of the mitigation point in paragraph 5(a) of the notice. The appeal may only proceed on the complaint of an excessive sum for injury to feelings and failure to take proper account of benefits. Those points can be dealt with at the full hearing of the Tribunal.