United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1258_95_2204

Appeal No. EAT/1258/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 April 1996

HIS HONOUR JUDGE B HARGROVE QC

MR P DAWSON OBE

MRS M E SUNDERLAND JP

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BROWN & ROOT EALING TECHNICAL SERVICES LIMITED          APPELLANTS

MR J ADEKUNLE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR N STOREY

(of Counsel)

Legal Department

Brown & Root Ltd

150 The Broadway

Wimbledon

London

SW19 1RX

For the Respondent MS E OVERS

(of Counsel)

North Islington

Law Centre

161 Hornsey Road

London

N7 6DU


 


JUDGE B HARGROVE QC: This is an application by the Appellant employer that this matter should be adjourned, so that the Chairman's notes of evidence can be obtained.

The Industrial Tribunal held that the employee, who was dismissed because of redundancy, was unfairly dismissed. There are a number of grounds of appeal, some five in all, one of which might possibly be a point of law. All the others come under the heading of "perversity". They are little more than complaints that the Tribunal did not accept evidence which was proffered on behalf of the employer.

On 1 December 1995, the Registrar informed the parties that the notes of evidence would not be needed. This matter was listed for hearing in early February and it was not until 25 March 1996, that an application was further made for the notes. That was, to put it mildly, late.

The Registrar refused that application and there was a further application, which came before the President on 3 April, and he refused that application for the Chairman's notes. He decided that they were not necessary to argue the question of law on the appeal.

There was a further application. It came before the President again and he confirmed that he was refusing production of the Chairman's notes.

It is fair to say that there has been no actual written application in relation to the matters put before us today. Indeed, the Respondent expected only the point to be raised concerning the Chairman's notes.

What has been put before us has been an adjournment application, application for a Chairman's notes and the point has been argued that, there having been no preliminary hearing in this case, the Appellants are entitled to their preliminary hearing. They are certainly not entitled on the present Practice Directions, nor in our view, were they entitled to it, as a matter of law, on the previous Directions.

Preliminary hearings only occur where the Registrar decides that there is a case which requires such a hearing. In those cases, then the practice is clear. The case will be listed ex parte.

In our view, that first point fails and in any event, the matters being raised today are matters which could have been raised, and would only be raisable, in order to convince a court of an arguable point on the preliminary hearing.

As I have already indicated, there is no application as such before us, but we have considered the matter as if there were such an application, bearing in mind, first of all, that this matter has been twice before the court and has been twice refused. Secondly, that the rule in Burnett v Value Travel Agency Ltd [1989] ICR 79 page 89, that applications for notes must be made promptly. This is anything but a prompt application for the notes. It is certainly a last minute application for an adjournment.

It is said that costs can cure the problem, so far as the Respondent is concerned. Whether they do so or not, it is a fair enquiry why a Respondent, who has come before the court and has prepared his case, should be asked to delay further by reason of the neglect of the Appellants. That matter has not been answered in any way and in our view, it is quite wrong for this type of application to be made so late in the day, and without any proper notice.

In those circumstances, the application for the adjournment is refused and so is the application for a further hearing (to be called a preliminary hearing) and any application for Chairman's notes is also refused.

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We are satisfied that in this case there has been unreasonable delay. The making of an application to adjourn, at so late a stage, with the result that the appeal is thereafter abandoned, seems to us to be such conduct which is clearly taken into account under Rule 34(1).

Accordingly, we shall make an order that the Appellants pay the Respondent's costs of today, such costs to be taxed, if not agreed.

There will also be a legal aid taxation of the Respondent's costs.