United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 277_94_1110

Appeal No. EAT/277/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS A MADDOCKS OBE

MR J A SCOULLER

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DR B DALGARNO          APPELLANT

UNITED KINGDOM ATOMIC ENERGY AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): Dr Dalgarno's application is for the review of the decision of the E.A.T. given on 14 November 1994. For reasons explained in the judgment given on that day, an order was made, after hearing Dr Dalgarno in person, that the Preliminary Hearing of his appeal had failed to satisfy the E.A.T. that he had an arguable point of law. The Tribunal accordingly ordered that his appeal should be dismissed. On 24 November, Dr Dalgarno wrote to the Tribunal confirming the request made at the hearing for a transcript of the judgment and also saying that he wished to invoke the review procedure. He was entitled to invoke that procedure contained in Rule 33 of the Employment Appeal Tribunal Rules 1993. That empowers the Appeal Tribunal to review any order made by it and, on such a review, to revoke or vary the order on certain grounds. The ground which is relied upon by Dr Dalgarno is that the interests of justice require a review.

This hearing was therefore arranged to determine whether a review should be granted. As before, Dr Dalgarno appeared in person and made oral submissions. He has supported those by further documents which he has submitted and which we read prior to the hearing, setting out the grounds upon which he is dissatisfied with the way in which the E.A.T. dismissed his appeal.

The Tribunal is not constituted in the same way as before because, sadly, Mr T S Batho, one of the lay members at the hearing on 14 November 1994, has since died. Mr Scouller has sat instead of him. It is not necessary today to repeat what is said in the detailed judgment given on the earlier occasion. The basis of the application was rightly focused by Dr Dalgarno on two passages in the judgment. He referred first to page 4 of the E.A.T. judgment, which quotes, as the critical paragraph of the Industrial Tribunal judgment, paragraph 25. That states the basis on which the Tribunal reached the conclusion that, although Dr Dalgarno had been unfairly dismissed, they estimated that he had contributed 80% to his dismissal. Paragraph 25 has been pointed out to Dr Dalgarno a number of times during the hearing of this application. It has to be read, not only in the context of the whole decision, but specifically in the context of paragraphs 21-25 (inclusive). That group of paragraphs deals with the whole question of contributory conduct and sets out in detail the considerations which led the Tribunal to conclude that there was contributory fault of 80% on Dr Dalgarno's part. The other passage in the decision of the E.A.T. on which Dr Dalgarno has focused is on page 7 of the transcript which says this:

"We find no arguable question of law in the submissions made by Dr Dalgarno orally this morning or in his detailed grounds of appeal. It appears that what he is seeking to do, not surprisingly in view of his circumstances, is to run a repeat of the unsuccessful hearing before the Industrial Tribunal on the question of contributory fault. We are unable to afford him another hearing on such a general ground."

Dr Dalgarno's essential argument is this. That the finding of contributory fault at 80% is perverse. It is one which no reasonable Tribunal would have arrived at. He says that it is perverse, because it is based on findings of fact which are themselves perverse. They are perverse because (and here he relies on a number of authorities to which I shall refer) those findings were made without evidence to support them. That allegation would be supported, he says, if we ordered production of the Chairman's Notes of Evidence. During most of the hearing this morning, Dr Dalgarno went to specific points on which he said that the Tribunal had made a finding of fact which was erroneous and perverse, because it was not supported by any evidence; if the findings of fact on which the 80% contribution were based were perverse, so must the conclusion of 80% contributory fault.

The cases on which reliance was placed are well-known to this Tribunal. First, the case of Piggott Brothers & Co Ltd v Jackson [1992] ICR85 at page 96, which he relied on for the proposition that:

"(A party seeking to show that no reasonable tribunal could have reached such a conclusion on the evidence will almost certainly require the notes of evidence.)"

He relied on the well-known cases relating to perversity East Berkshire Health Authority v Matadeen [1992] ICR723 and Burnett v Value Travel Agency Ltd [1989] ICR79. He finally relied on Webb v Anglian Water Authority [1981] ICR811 in which it was held that an application for chairman's notes of evidence to be supplied would be granted where the notes were relevant for the purposes of supporting an allegation that there was no evidence to support findings of fact, or that the Industrial Tribunal failed to make relevant findings of fact, or that the Industrial Tribunal misunderstood the evidence and that their findings were perverse.

The reliance on those authorities is coupled with a letter which Dr Dalgarno wrote to the Tribunal at the beginning of this month saying that he wanted to make an interlocutory application for the Chairman's Notes of Evidence. He was informed by the Registrar in a letter that this was something that would be dealt with at the hearing of his application. He explained in that letter why he said that the Notes of Evidence were essential. What he said was that, according to our judgment on the matter of perversity, we had rejected the claim but we had done that without first obtaining the Industrial Tribunal's Chairman's Notes of Evidence. He repeated that his complaint of perversity was of such a kind, that on the authorities, it was essential for the Chairman's Notes of Evidence to be produced, so that the truth of the matter on the findings of fact would be established and justice administered.

We have borne in mind, in determining whether we should grant this application, not only what we said on the earlier judgment on 14 November 1994, but also the decisions referred to. We have considered the arguments which Dr Dalgarno has made. He has argued a number of specific points before us; pointing to particular findings of fact which he sincerely believes are false and perverse findings of fact. He has repeated a number of complaints; in particular a complaint that there were two pages of updated pleadings which had not been sent to us by the Industrial Tribunal; and had not come to our attention on the earlier hearing of the appeal, because they were not put in the correct place in the bundle; he has discussed at length other findings of fact which he strongly disagrees with. He had brought home to us the sad position in which he now finds himself, still unemployed. Although he won his case, he is saddled with the stigma of a finding of contributory fault. We are convinced by him that he is unable to accept the correctness of the finding of contributory fault.

Despite all those arguments, however, we are still unable to find that there is anything legally incorrect in the conclusion of the Tribunal on the question of contributory fault. We are unable in those circumstances to find that the interests of justice require the granting of a review. The interests of justice can only require the granting of a review if, on further consideration, we conclude that there is after all an arguable point of law on this appeal or relevant fresh evidence. We are still unable to find it. That leaves us with no option but to refuse to grant the application.