United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 386_93_2909

Appeal No. EAT/386/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 September 1995

Before

THE HONOURABLE MR JUSTICE TUCKER

(AS IN CHAMBERS)

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MRS D SPRINGER AND OTHERS          APPELLANTS

LONDON BOROUGH OF BRENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants BRUCE PIPER

Director of Legal Services

UNISON

1 Mabledon Place

London

WC1H 9AJ

For the Respondents MR J R MCMANUS

(of Counsel)

Solicitor to the Council

London Borough of Brent

Room 407

Chesterfield House

Park Lane

Wembley

HA9 7RW


 


MR JUSTICE TUCKER: This is an application made by Counsel on behalf of the Appellants for provision of the Chairman's notes of evidence and consequential upon that application, a second application to adjourn the date fixed for this hearing which is presently

listed for hearing next week on 5 October.

Today's date is 29 September 1995. The matters which give rise to the appeal and to the applications which preceded it, are that a number of employees left their employment with the Respondents, the London Borough of Brent, in or about September 1991.

So far as at least one of them is concerned, Mrs Daphne Springer, her Originating Application was promptly made on 11 October 1991.

An Industrial Tribunal, sitting at London North, heard these applications together on many days commencing on 9 November 1992, and extending into a period ending in late February 1993. The unanimous decision of the Tribunal was that the Applicants were not subject to racial discrimination, nor to victimisation and that they were not unfairly dismissed.

The Applicants were dissatisfied with that result and they appealed it. Again, so far as the Appellant, Mrs Springer is concerned, her Notice of Appeal was dated 7 May 1993, within the time limit.

The Respondents' answer to that notice is dated 2 June of that year. So far, no possible complaint could be made on the grounds of delay, having regard to the difficulties of listing these matters, which accounted for the gap between the making of the Originating Application and the hearing. Subject to that, the matter was promptly dealt with, but thereafter promptness does not feature in the conduct of these proceedings, because following the Respondents' answer of 2 June 1993, there was no further activity in this action for a period of two years.

The Notice of Appeal had been settled by the experienced Counsel who had represented the Appellants before the Industrial Tribunal, Mr G. Meeran. He subsequently took appointment and was no longer available to act as Counsel, but of course, he was not the only legal representative of these Appellants. They have Solicitors acting on their behalf and we assume that those Solicitors were backed by a union or unions.

But one cause we are told, of the delay which has occurred, is the fact that Mr Meeran was appointed as a Chairman of Tribunals himself. If not the cause of the delay, certainly some explanation as to why the present application was not made sooner.

The second matter is that the Solicitors made their application to the wrong place. They applied to the Industrial Tribunal instead of to the Employment Appeal Tribunal. Mr Allen, QC., who now represents the Appellants, realistically conceded that the application was made at a rather late stage. That understates the matter; it is made on 29 September 1995, four years after the Applicants were dismissed, or retired from their employment, and getting on for three years after the commencement of the hearing before the Industrial Tribunal. Moreover we are now dealing with the matter only five days before the date fixed for the substantive hearing.

It is apparent from that history of events that there has been very considerable delay. The only reason, it seems to us, that the matter was resurrected and brought to the attention again of the Appellants' Solicitors, was that officials from the Employment Appeal Tribunal made an enquiry in May of this year as to a date for the listing of the appeals.

Meanwhile, nothing had been done. No consideration had apparently been given at the time of the settling of the Notice of Appeal, or upon receipt of the Respondents' notice, to the question whether it would be appropriate to apply for the Chairman's notes of evidence, and nothing was done about it since.

This Tribunal has said on more than one occasion that if Chairman's notes are to be applied for, the application must be made promptly. It behoves those who seek the notes to make their applications quickly and within a very short time after the hearing of the Industrial Tribunal, and the Employment Appeal Tribunal has said more than once that if late applications are made, which necessarily involve the adjournment of the hearing of the substantive appeal, they will be unlikely to be met with sympathy.

We repeat those observations. We take the view that it is now far too late to require the Chairman, who incidentally we are told, has since retired from her position, far too late to require her to produce notes, notes not on one specific point but on a number of points and relating to a number of witnesses. This application should have been made months and indeed, years ago.

We take the view that to grant it now would be to impose an undue burden upon the Chairman of the Industrial Tribunal and to inflict prejudice upon the Respondents to this appeal. It is high time that these appeals were dealt with.

Accordingly, we refuse the application, persuasively made as it is by Mr Robin Allen, and we refuse the application for Chairman's notes. It follows from that that we have no need to consider the second application; had it been necessary to do so, we would not have granted an adjournment of a hearing date fixed so long ahead.

Accordingly, these applications are refused.

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Costs for expenses: Rule 34 of the 1993 Rules.

"34(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

I see no reason why proceedings should not cover interlocutory proceedings. The

Appellants must pay the costs of today's application.