United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1147_94_2911

Appeal No. EAT/1147/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 November 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS E HART

MRS R A VICKERS

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A.M.WIDDOWSON & SON LTD          APPELLANT

MR R BELL & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant PROFESSOR A C NEAL

(Of Counsel)

Messrs Rich & Carr

Solicitors

PO Box 15

Assurance House

24 Rutland Street

Leicester

LE1 9GX

For the Respondents MR P N HINCHLIFFE

(Of Counsel)

Messrs Towns, Needham & Co.

Solicitors

John Dalton House

(4th Floor)

121 Deansgate

Manchester

M3 2AR


 


MR JUSTICE MUMMERY (PRESIDENT): This is an application for review of an order made by this Tribunal on 9 June 1995. The order in question was an order that the Appellants, A M Widdowson & Son Ltd., pay the costs of the appeal heard on that date to the Respondents. On 20 July a letter was written by Rich & Carr, Solicitors, Leicester, applying for a review of the order for costs. The basis of the application was that, in the reasoning of this Tribunal leading to the order for costs, there was a factual error. It is clear from our judgment that one of the matters which affected our decision to order costs was our belief, formed on the basis of the material before us, that the hearing in which the Chairman made the order appealed against was a pre-hearing review and not a preliminary hearing.

The basis for that view is explained in the six-page judgment delivered on that day. Further enquiries were made after the decision, which disclosed the existence of a letter dated 1 September 1994. That letter indicates that what took place on 19 October was in fact a preliminary hearing on the question of jurisdiction under the Wages Act 1986, and that the request, which had been made by the company for a pre-hearing review, was in fact rejected by the Industrial Tribunal. The copy letter we have seen was sent to the person representing the company, Mr Reeves. A copy was sent to the person representing the Applicants, Mr Abraham. There is no doubt that that letter puts a different complexion on the situation as we understood it at the hearing on 9 June.

In the course of questions put to Professor Neal, who represents the company today, he said that this Tribunal had been misled into thinking that it was dealing with an appeal from a pre-hearing review; it had been misled by what Mr Hinchliffe had said, and, more seriously, we had been misled by the silence of Mr Abrahams, who was in the Tribunal on 9 June, and said nothing or did nothing to correct a misapprehension on our part.

This is a serious allegation. It is of as much, if not more, concern, on the part of this Tribunal, than on the part of the parties. It is a serious thing for a Tribunal of any kind to be knowingly misled about a factual matter, such as the course that proceedings have taken. There is, however, no hint of this allegation in the letter which contained the application for review. This has led to an unsatisfactory position. Serious allegations are made, without any prior warning and without an opportunity to answer them. Mr Abrahams is not here today. It would not be right to make any decision on which he would wish to make representations, without him being given an opportunity to give his side of the events.

In those circumstances, despite submissions from Professor Neal and Mr Hinchliffe as to how we should deal with this matter today, we have decided that the application for review should be adjourned. We are unable to accede to Professor Neal's submission that we should set aside the order for costs, on a review under Rule 33 and order the Respondents to the appeal to pay the costs of today. We are unable to accede to Mr Hinchliffe's submission, that there were other grounds which, by themselves, would have justified us in making the order for costs that we did. We should refuse the review requested.

The view that we have unanimously reached is that it is only possible to be fair to everybody (and that is the function of this Tribunal, to be fair to everybody), by adjourning this matter. It is to be re-listed for hearing after the Industrial Tribunal has reached a decision on the case. We indicate that that hearing of the case should take place as soon as possible. It is already 18 months since the case started. There is still an argument about whether the case has been brought in the right forum.

In readiness for the adjourned hearing of the review, we would direct that Affidavits be sworn, relevant to the question of how we came to be led to believe that we were dealing with an appeal from a pre-hearing review, and not a preliminary issue on jurisdiction. Affidavits are to be sworn on the Appellants' side as to the knowledge on their part of the nature of the hearing, as at the date when we heard the appeal in June. An Affidavit should be sworn by Mr Abrahams, explaining his knowledge of the circumstances as at the date of the appeal hearing. When we have Affidavits from each side, we will be able to make a fair assessment of whether we made a correct order on 9 June or not. We do not think that the adjournment of this application will prejudice either side. The order for costs is not to be enforced against the Appellants until the whole matter has been reviewed.

The basis upon which we are making this decision today is that it appears to be alleged that we have been knowingly misled into making an order that we might not have made, if we had not been misled. This is a matter of concern to the Tribunal. It is not simply an inter-partes matter. The Tribunal will require the fullest possible explanation on both sides, as to the knowledge of each side of the relevant circumstances at the date when we made our order. The only order we make today is that the matter is stood over until after the Industrial Tribunal decision.