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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Indrayen v Shadowgrade Developments Ltd [1996] UKEAT 983_95_0105 (1 May 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/983_95_0105.html
Cite as: [1996] UKEAT 983_95_105, [1996] UKEAT 983_95_0105
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR K M HACK JP
MR A TUFFIN CBE
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
MR JUSTICE MUMMERY (PRESIDENT): There are listed for hearing today three Preliminary Hearings of appeals in cases brought by Mr Indrayen against Shadowgrade Developments Ltd. In each of the cases, Mr Indrayen who has not turned up to argue his appeals, nor is he represented, was notified of the hearing at the address provided to the Tribunal, 98 Alexandra Gardens, Chiswick, London W4 2RZ. Notification was given to him on 26 February that the hearings would take place today. In two of the appeals, EAT/983/95 and EAT/1104/95, the Notice of Appeal was served on Mr Indrayen's behalf by a firm of solicitors, Messrs Brown Cooper of 7 Southampton Place, London WC1A 2DR.
According to letters on the Court file in those two cases, the Solicitors wrote to the Tribunal stating that their instructions were limited to the filing of the Notice of Appeal and that thereafter this Tribunal should correspond with Mr Indrayen at the address shown in paragraph 1 of the Notice. That address in the Notice of Appeal is the address already mentioned. That is the address to which this Tribunal has sent letters to Mr Indrayen. As he has been notified of today's hearings at the address in his own documents and Notices of Appeal, we have decided to determine these appeals in his absence. We shall take into account the points in his grounds of appeal.
The purpose of each of the Preliminary Hearings is to decide whether the grounds of appeal raise arguable questions of law. We will deal with each appeal in turn. The first, EAT/983/95, is an appeal against the decision of the Industrial Tribunal held at London (South) on 31 July 1995. At that hearing, Mr Indrayen was represented by Mr Roe of the Free Representation Unit. The Tribunal, in Extended Reasons notified to the parties on 2 August 1995, explained how they had reached the unanimous decision that they had no jurisdiction to entertain Mr Indrayen's claim for damages for breach of contract, and why they refused his application to amend the Originating Application to include a claim for unfair dismissal under Section 60A of the Employment Protection (Consolidation) Act 1978.
Mr Indrayen's solicitors, for the purposes of filing a Notice of Appeal, were Messrs Brown Cooper. They served a Notice of Appeal against that decision on 13 September. The only ground of appeal related to the refusal of the amendment. The grounds on which the appeal was brought were that the Tribunal had erred in law, in that, in paragraph 10 of the written reasons, they distinguished the case of Home Office v Bose. The Applicant referred in his originating application to the fact that he had been dismissed. In those circumstances the Tribunal had misapplied the law relating to amendments in refusing leave to allege unfair dismissal.
Paragraph 6 of the Extended Reasons explains the circumstances in which the application for the amendment arose. One of Mr Indrayen's claims was damages for breach of contract, but it was accepted by Mr Roe, on the morning of hearing, that the Tribunal had no jurisdiction to entertain that claim. The extension of the Tribunal's jurisdiction in the 1994 order only provided jurisdiction for claims where the effective date of termination of the contract was on or after 12 July 1994. Mr Indrayen's employment by the Respondents ended on 20 May 1994. It followed inevitably that there was no jurisdiction. An application was then made to amend the Originating Application to include a claim of unfair dismissal under Section 60A.
Mr Roe submitted on Mr Indrayen's behalf that the application should be allowed. He cited to the Tribunal Home Office v Bose and said that, as the Originating Application referred to the dismissal, the amendment should be allowed. The application was opposed. The ground of opposition was that the amendment was not really an amendment at all. It was an application to bring a completely new cause of action. In paragraph 10 (which is referred to in the Notice of Appeal, the Tribunal said that the case was distinguishable from the Home Office case because both types of complaint in that case were made in the main part of the Originating Application, whereas in this case, the Originating Application was clearly based under the Wages Act and made no reference to unfair dismissal. The unfair dismissal claim was a new cause of action. No reason had been given why the complaint could not have been made within the three months period prescribed by Section 67. The claim was not only new, it was outside the statutory time limits. It was reasonably practicable for the claim to have been made within those limits. For all those reasons the application to amend was refused.
We have looked at the application (the IT1 form). In that there are a list of headings that can be ticked or circled to enable the Applicant to identify his claim:
"(i) Whether the Applicant was unfairly dismissed.
(ii) Whether the Applicant is entitled to a redundancy payment.
(iii) Determination and compensation in accordance with s.53 Employment Protection (Consolidation) Act 1978
(iv) Whether an unlawful deduction has been made under Part I of the Wages Act 1986."
The only item that was circled in the Application Form was the unlawful deduction under the Wages Act. That was the only item of which particulars were given. In those circumstances, it was clear from the form that a claim could have been made for unfair dismissal. But it was not. In our view, there was no error of law by the Tribunal in exercising their discretion to refuse the amendment.
The case is not determined by reference to the Home Office case. It is determined by general principles on amendments. The Tribunal has a discretion to allow an amendment. It decides to exercise that discretion on the basis of just and equitable considerations. In the present case there were several strong factors present which justified the refusal of the amendment. The application was made late. It was made to introduce a new cause of action. That new cause of action was outside the statutory time limit of three months. No reasons had been put forward to explain why it was not reasonably practicable to have made it in time. In our view, the exercise of the discretion was amply justified by those factors. We are unable to find any arguable error of law. That appeal is therefore dismissed.
In the second appeal EAT/1104/95, the Notice of Appeal served by Messrs Brown Cooper, is against the decision of the Industrial Tribunal notified to the parties on 31 August 1995, giving reasons for refusing an application for a review. The Tribunal stated that they had heard the case on 31 July 1995 when Mr Roe of the Free Representation Unit appeared for Mr Indrayen. They had then promulgated their decision on 2 August. On 15 August a long letter was sent in by Mr Indrayen applying for a review, on the grounds that the interests of justice required it.
His complaint to the Tribunal was that his evidence had been rejected. He wanted to introduce new evidence to support his credibility and cast doubt on the credibility of the Respondent's witnesses. The Tribunal Chairman considered these complaints. His conclusion was that the findings of fact, set out in the decision, were based on the evidence and arguments put before the Tribunal at the hearing, and that once a decision had been made and promulgated, there was no power for a Tribunal to hear further argument based on the same evidence. The application for review appeared to constitute an attempt to re-argue parts of the case, with a view to persuading a Tribunal to give different weight to some of the evidence and revise its findings of fact.
There was no indication in the decision that the new evidence which he sought to introduce was either relevant to the issues in the case or was not obtainable by the use of reasonable diligence for use at the original hearing in July. The ground of appeal in the Notice served on 11 October 1995 was that the Tribunal had misdirected itself in law in saying that, once a decision had been made and promulgated, there was no power for a Tribunal to hear further argument on the same evidence. The evidence upon which Mr Indrayen was now seeking to rely had not been before the Tribunal, as the Tribunal did not allow him to adduce such evidence. The Tribunal therefore misapplied the law. The grounds also referred to full particulars by way of Affidavit in respect of an alleged case of bias against the Chairman. No such Affidavit has been filed. Nor have any such particulars.
In our view the point in paragraph 6 of the Notice of Appeal is misconceived. There were no grounds for reviewing a case, simply because the earlier Tribunal had not allowed him to adduce evidence. We do not know of the grounds on which it was refused. If it was on the grounds that it was irrelevant, that is the end of the matter. If he was seeking to introduce new evidence which was available for the earlier hearing but had not been produced by him, then the Tribunal was under no obligation to accept such new evidence.
The duty of a party bringing a case is to adduce at the hearing of it, all the evidence available to him or would be available to him if he made reasonable efforts to obtain it. It is not a ground for obtaining a review that there is evidence now which was previously available and he did not think it was necessary to use it. It is not a ground for review that he wishes to bring forward some evidence on the review that had been rejected at the earlier hearing. In our view, paragraph 6 of the Notice of Appeal is not arguable as a point of law. We dismiss that appeal.
The third Notice of Appeal was signed by Mr Indrayen himself and is dated 23 January 1996. That appeal is against the decision of the Industrial Tribunal at London (South) on 11 December 1995. The number of this appeal is EAT/107/96. The Tribunal unanimously decided at that hearing of another case brought by Mr Indrayen against Showgrade Developments that his request for a postponement should be refused and that his Originating Application should be dismissed. The Tribunal ordered Mr Indrayen to pay £150 towards the Respondent company's costs.
The Extended Reasons for that decision were notified to the parties on 14 December. Mr Indrayen's Notice of Appeal was served on 23 January. The grounds of his appeal were that the Tribunal had wrongly refused his request for a postponement while he was abroad, and had then dismissed his claim and ordered him to pay costs in his prior known absence.
Mr Indrayen, in the detailed grounds, complained that no reference was made in the Extended Reasons to his letter of 6 November 1995, where the Tribunal was informed by him, well in advance, that he would not be available during most of the months of December 1995 and January 1996. No reply was sent by the Tribunal to him by fax as requested. The Tribunal's reply dated 17 December 1995 refusing the application for a postponement was not received by him before he had left the country on 18 November. He was therefore denied the opportunity to plead further or reconsider his trip abroad or be present at the hearing. He said it was not right in those circumstances for them to hold a hearing, or to dismiss his Originating Application in his absence. His non-attendance in those circumstances was not unreasonable, and therefore costs should not have been awarded against him. The decision was made in his absence. He was a person entitled to be present and heard. He added for good measure that the decision was inconsistent with the evidence and had been taken in the absence of matters upon which it was based.
We have considered those grounds of appeal. They are not arguable. The fact is, as appears from the Extended Reasons, that the case was listed for hearing; it had earlier been postponed at Mr Indrayen's request because of illness. They were informed by him that he would not be available in October and November and he asked the Tribunal to list after that date. They did that. They sent him a Notice of Hearing on 24 October 1995 that hearing would take place on 11 December. He knew of that date, but he did not attend. He wrote to the Tribunal on 1 December by airmail from India, asking for a further postponement. The Tribunal considered the request and they refused it. Their conclusion was that he was not pursuing his complaint diligently. They said he did not have to travel to India. He knew of the hearing which was listed to suit his convenience and the Respondents were there ready to proceed.
They refused the application to postpone in the exercise of their discretion. In our view, they were entitled to do that. A Tribunal has discretion whether to decide to go ahead and determine a case of which notice has been given or whether to postpone it. It is for them to decide whether there is a good reason for postponing it. Having regard to the earlier history of this matter, which they were entitled to take into account, the decision to refuse to postpone is one that they were entitled to make.
They then went on to decide the case. They said the burden of proof was on the Applicant. He was not there to adduce evidence so they had to decide it in the absence of evidence. That led to the matter being dismissed. They explained in the final paragraph why they considered that it was not reasonable for Mr Indrayen to go abroad and then fail to return to pursue his complaint. For that reason they exercised their discretion to award £150 costs against him.
We have considered those reasons. The fact is that the appeal is against matters of discretion. Such an appeal can only succeed if it is shown that the Tribunal made an error of legal principle in the way it exercised the discretion, or reached a decision on the exercise of the discretion that no reasonable Tribunal would. There is sufficient material in the reasoning of the Tribunal to justify the course that they took. Our conclusion is that the Notice of Appeal raises points which are not questions of law that are reasonably arguable. There is no point in the case proceeding to a full hearing. We accordingly dismiss that appeal at this stage.