United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1033_94_1403

Appeal No. EAT/1033/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 March 1995

THE HONOURABLE MR JUSTICE BUCKLEY

Mr D G Davies

Mr K M Young OBE

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JOSEPH AARON & CO          APPELLANTS

ROLAND TAYLOR          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR M DUGGAN

(Of Counsel)


 


MR JUSTICE BUCKLEY: This is an appeal or the first step towards an appeal by Mr Aaron whose name the Appellant firm bears. He was held to have unfairly dismissed the original Applicant and now the Respondent, Mr Taylor, and the Tribunal at the last hearing made an award. The summary reasons were given in July last year, followed by some extended reasons shortly afterwards. It is on the compensation that Mr Aaron now seeks to appeal. Two so-called points of law are raised, the first is on the question of mitigation by Mr Taylor, the points that Mr Duggan who has appeared for Mr Aaron before us makes, is that the Tribunal went wrong in not focusing sufficiently on causation.

It appears that Mr Taylor took a job with Desmond Pye. Perhaps we should have said that all parties in this are in the legal profession on the solicitor's side, but he left that job for a less highly paid one and Mr Duggan says, well, that is something he did of his own initiative and that loss should not be laid at the door of Joseph Aaron & Co. If that were correct factually, Mr Duggan would have identified a point of law, but the findings of the Tribunal are quite clear. In short, they find that Mr Taylor accepted that position with Desmond Pye solely with a view to mitigating his loss, that he would not have accepted that position otherwise and that when a suitable position became available he took it, albeit it did not pay quite so much and the Tribunal found as a fact, that that was perfectly reasonable. We can see no wrong approach in law emerging from that and the finding of fact to our mind kills any further argument.

The next point that Mr Duggan is instructed to take is that at the hearing when

Mr Taylor was giving evidence, prompted perhaps by some questions from the Tribunal, again this is simply on quantum, Counsel produced an amended schedule and the point that

Mr Duggan is instructed to place before us is that that was some form of irregularity and that Mr Aaron who was appearing for his firm at that stage was prejudiced by this in some way, and could not deal with it. Not least because the background to this is inadequate discovery and the Tribunal went wrong, procedurally wrong, in refusing at the very least to allow an adjournment or to afford Mr Aaron the opportunity of investigating and dealing with this new schedule. Again, if that were made out as a matter of fact and we felt that Mr Aaron had not had a fair or proper opportunity of presenting his case, something would have gone seriously wrong, there would be a sufficient point of law or matter of sufficient seriousness for us to interfere, but that is simply not made out. Mr Aaron has instructed Mr Duggan to come and take these points before us, he has not appeared here himself, of course he is not bound to but what he has got a duty to do particularly as a solicitor himself, someone who must be taken to know how these matters proceed, what he has got a duty to do is to instruct Mr Duggan properly and to give him the material to support the allegations that he is making. Mr Duggan has not been placed in possession of either the schedule or the amended schedule, so he is not in a position to persuade us that the amendments were of any materiality at all. Even assuming they were of some materiality we are wholly unable to see whether they gave rise to any prejudice or real embarrassment to Mr Aaron. Secondly Mr Duggan has not been able to tell us as a matter of fact, whether Mr Aaron objected in the sense of asking for an adjournment or objecting to the production of this amended schedule, all Mr Duggan can tell us is that he challenged the contents of it. That is a very different matter and suggests perhaps that he was able to deal with the amendments such as they were with proper argument. The point seems to have been the incidence of taxation.

There is a letter before us dated 17 October from the Chairman of the Tribunal and whilst we do not propose to read it, that letter again does not indicate that Mr Aaron asked for an adjournment or took the point that he was embarrassed or unable to deal with these amended schedules.

Finally Mr Duggan referred us to various exchanges of correspondence in the course of County Court proceedings. The Tribunal's award was registered in the County Court and proceedings were taken there and Mr Duggan has seized upon, quite understandably, an allegation by Mr Aaron that the other side, Mr Taylor's representatives, have admitted that the schedules might not be quite right. But when one looks, even taking it at face value, from Mr Aaron's point of view, the amount of the award was actually £11,400 it was reduced to the £10,000 maximum and even taking everything in Mr Aaron's favour which frankly we see no reason why we should, since it is not supported by the necessary factual material but even if one were to do so the net result would be trivial.

At the end of the day, despite the fact that Mr Duggan has argued persuasively, taken every point that could have been taken and has conducted this matter with absolute propriety and we are grateful to him for that, we come to the conclusion that there is nothing of substance in this appeal and little if anything of form either. It seems to us that this is simply a rearguard action, so that Mr Aaron can be as awkward as possible over the award or put off the evil day and Mr Duggan has simply been instructed to come along to argue that points of law exist but without being put in a position to verify that or to give us any sufficient factual material upon which to judge whether there is anything in the points or not. We have concluded that there is not and there is no prospect of anything coming out of this appeal, except a waste of time and money. We dismiss it.