United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1254_95_2204

Appeal No. EAT/1254/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22nd April 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR A D SCOTT

MR N D WILLIS

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MR A K BHAM          APPELLANT

CFM GROUP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S MUNASINGHE

(of Counsel)

Instructed by:

MISS J FAWKES

Messrs Bobbetts Mackan

Solicitors

20a Berkeley Square

Clifton

Bristol

BS8 1HP

For the Respondents MR I McCABE

(of Counsel)

Instructed by:

MS L BURNS

Messrs Masons

Solicitors

30 Aylesbury Street

London

EC1R 0ER


 


MR JUSTICE BUTTERFIELD: The appellant applies, in effect, for this appeal to be adjourned and the matter remitted to the Industrial Tribunal for that tribunal to consider additional evidence from one Gerald Hartley, who has sworn an affidavit on 23rd February 1996. The respondents resist that application. We therefore have to rule upon it.

It is only in exceptional circumstances that fresh evidence will be admitted in this tribunal. We do not propose to admit the evidence in this tribunal.

However, in considering what we should do in relation to this fresh evidence, we have had regard to the same principles that apply to such an application. Those principles are clearly set out in decision of this tribunal in the case of Wileman v Minilec Engineering Ltd [1988] IRLR 144 in which Popplewell J. stated that the party seeking to introduce the new evidence must show:

1. ) That the evidence could not have been obtained with reasonable diligence for use at the tribunal.
2. ) That not only must it be relevant, but that it would probably have an important influence on the result of the case, even though it need not be decisive.
3. ) That it is apparently credible, though it need not be incontrovertible.

The second and third of those criteria, are, in our judgment, plainly fulfilled. The evidence which it is sought to have placed before the Industrial Tribunal, if accepted by that tribunal, could have a substantial influence on the tribunal's finding that the applicant's allegation of racial discrimination was both false and not made in good faith. The tribunal found that to be position. Accepting as they did the evidence of Debra Lilley they inferred from her evidence that the applicant was using the possibility of alleging racial discrimination as a tactical tool. The evidence which it is sought to admit goes substantially to that central and important issue.

It is, however, submitted on behalf of the respondent that the evidence is unsatisfactory as to when the information came to the knowledge of the appellant or his advisers, so that the appellant has not established that he could not have advanced it at the original hearing. It is submitted that the appropriate course here was for the appellant to make an application for review of the decision under Rule 11 of the Rules and to seek to satisfy the tribunal to re-open the matter under Rule 11(1)(d). No such application was made.

We remind ourselves, however, that this tribunal and indeed the Industrial Tribunal in particular, is designed for the swift and sensible resolution of disputes between employer and employee. It is not to be hidebound by rules of procedure, where those rules may operate unfairly upon an appellant or an applicant. There may be fault in this case as to the route chosen to introduce this fresh evidence, but that fault lies, if at all, with the representatives of the appellant and not with the appellant himself. It is plain from the correspondence that the information which formed the subject of Mr Hartley's affidavit, was in the possession of the appellant's advisers by, at the latest, early January 1996. What they should then have done with that intelligence is not a matter for this tribunal to determine, but it is plain that it is no fault of the appellant that the route they have chosen is one to which we have referred.

It is in those circumstances, not without some hesitation and not without some difficulty, that we have concluded on balance, that it is at least arguable that the evidence could not have been obtained with reasonable diligence for use at the tribunal. The other tests being met, in those circumstances, we propose to remit the matter to the original tribunal for them to hear and determine the discrete issue, and only the discrete issue, raised by the affidavit of Mr Hartley. It will be a matter for the Industrial Tribunal to decide on the evidence placed before it whether the evidence of Mr Hartley could not have been obtained with reasonable diligence for use at the original hearing. We do not purport to fetter the discretion of the tribunal in any way in determining that issue. If the tribunal does conclude that the evidence could not have been obtained, they will wish to consider that evidence and review their findings in the light of it.

This appeal will be adjourned, to be restored for disposal after the remitted hearing.

We will of course consider any representations now made as to any subsidiary directions which are required by either party.

MR JUSTICE BUTTERFIELD: Following our ruling in respect of this matter, Mr McCabe has applied for an order that the appellant pay the costs of the respondents on the ground that these proceedings were "unnecessary, improper or vexatious, or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings."

We have carefully considered that application. In our judgment, there is force in Mr McCabe's submissions. In the light of our finding, this matter could and should have been dealt with by way of application to the original Industrial Tribunal for review. We take the view that some order for costs should here be made on the ground that the conduct of these proceedings has been unnecessary, at least so far as this part of them is concerned.

We remind ourselves, however, that there would have been an application for a review in any event. We also have regard to the whole circumstances of these proceedings. In the light of all circumstances, we have come to conclusion that the appellant should pay to the respondents 25% of the taxed costs of today's hearing of this appeal.

We wish to add, however, that on the information presently before us, we should not expect the appellant personally to have to bear those costs. That of course is simply an observation and not in any sense binding on the appellant's advisers, the appellant himself or any other tribunal that may have to consider that situation.