United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S KUTTAPAN (Representative)
For the First Respondents For the Second Respondents	MR D MARTIN (of Counsel) Fairbairn Morris Grant House 56-60 St John Street London EC1M 4DT MR K BRYANT (of Counsel) Lovell White Durrant 65 Holborn Viaduct London EC1A 2DY

EAT/966/98 EAT/1137/98

MR S FACEY V (1) MIDAS RETAIL SECURITY
(2) WHITGIFT CENTRE MANAGEMENT

PROCEEDINGS:

Justice Charles:

I will want to start by hearing submissions as to how it is asserted by any of you that this Tribunal can determine the issues that arise in this case without first considering whether or not there should be oral evidence and cross-examination, because it seems to me at the moment that the case raises very stark issues of fact and this is not a case in which it can be said, accepting what the Applicant says, there is no bias. Equally on the other side of the coin, if one accepts what the Chairman says and what the evidence of the Respondents is, it is not easy to see that there was any bias.

Therefore a stark point is raised where serious allegations are made against the Chairman. If those allegations are untrue, that itself gives rise to serious issues. If they are true, equally it gives rise to serious issues. It would at the moment seem to us that it is not practical for us to deal with issues of cross-examination without firstly having discovery. We also are presently of the view that this matter raises points of general importance as to how this Appeal Tribunal should deal with such allegations and what we would presently be minded to do, subject to hearing everybody as to the correct procedure, would be to invite the attorneys to appoint an Amicus, to make submissions as to how this matter should proceed and also to give the Tribunal the opportunity, should they wish to take it up, of making submissions on a further directions hearing which would take place before the new President next term, as to how this matter should proceed.

Having made our position clear, I think it is probably for you, Mr Kuttapan, to make such submissions as you wish to, essentially as to say how we can proceed simply on paper, if you say that that is what we should do.

Mr Kuttapan:

Sir, before I start pointing out relevant pages of the bundle. I would like to draw your kind attention to an important decision of the House of Lords which has been reported last Monday in The Times.

Justice Charles:

Nagarajan.

Mr Kuttapan:

Nagarajan's case.

Justice Charles:

That does not have anything to do with this case does it? This is a case you are asserting bias and procedural irregularity. That is the approach to be taken to victimisation claims.

Mr Kuttapan:

Yes, but there are possible points in paragraphs.

Justice Charles:

Yes, certainly.

Mr Kuttapan:

I have a copy of that Times there for copying. Sir, I would like to draw your kind attention to the highlighted paragraphs.

Justice Charles:

Yes, I have seen that. And what do you get from that?

Mr Kuttapan:

Well that is absolutely in fact the truth.

Justice Charles:

Yes, but what do you get from it?

Mr Kuttapan:

The point I am making is actually when the case was heard by the Employment Tribunal, I believe, or my submission is perhaps the Chairman may also have been

Justice Charles:

Well you make very serious allegations against this Chairman, which this Chairman disputes. The factual dispute between you and your client and this Chairman is that one or other of you are behaving extremely badly. Because you say it was the Chairman and the Chairman and everybody else in the Court says it was you. That is a very stark issue of fact. How can we resolve that without hearing whether or not we should hear all evidence?

Mr Kuttapan:

I fully agree with you Sir, that is actually before hearing the full evidence it is very difficult, but nevertheless I believe that if the allegations against me or against my contact was true, why didn't they actually take any legal action against me? Why didn't they take any contempt of Court proceedings? I am surprised.

Justice Charles:

Why should they?

Mr Kuttapan:

Well I remember actually in another case it so happened literally Second Respondent has produced for us today the Ruling of ……………(?) in that case the Respondent behaved, according to the Employment Tribunal Chairman, in a vexatious and scandalous manner. And therefore, the Employment Tribunal or the Secretary of State had taken contempt of proceedings against him and he had been convicted. So my submission is the allegations made against me are more serious. Five allegations have been made against me not only two. Five serious allegations, extremely serious allegations.

Justice Charles:

But this does not take us anywhere. The fact that someone does not decide to take a course of action which is open to them does not mean that you did not behave in the way that is set out by the Chairman and by both Counsel based on their contemporaneous notes. I am not saying you did or you did not, we simply cannot tell from the papers as to who behaved in what way and who said what to whom.

Mr Kuttapan:

May I say it will create a reasonable doubt in the mind of anybody if the Chairman is right that I had behaved in such a manner that is abusive, disruptive, vexatious, frivolous and one more actually I think…

Justice Charles:

I do not think we need add to that need we?

Mr Kuttapan:

Might indeed create a reasonable doubt in the mind of every right thinking person if that was true, why didn't they at least send a letter, one letter saying if he behaves so again he will be banned. No one has seen a letter – one – as soon as I received the promulgated decision dated 3 June 1998. I immediately sent a letter to the Regional Secretary and the copy has been produced in the bundle. And I asked whether they could actually explain fully in detail and I deny it and they did not actually give me an explanation. I did pursue the matter from 1 September I wrote directly to the Chairman. No reply. 30 September….

Justice Charles:

Can you make your submissions to me and the point that we want to hear submissions on to start with, as to whether or not you say we can proceed with this case, simply on the papers, and if so, why?

Mr Kuttapan:

First of all I would like to draw your kind attention to the refusal of an application for Review. I wish to call your kind attention particularly to paragraph…

Justice Charles:

I should actually tell you that there is an unreported decision in this Tribunal that where disputes of fact arise the version put forward by the Chairman should be accepted, but we as a Tribunal are not prepared to follow that. It is a case called Roberts but it is unreported.

Mr Kuttapan:

Can I kindly draw your attention to the refusal of my application for reasons. Sir I would like to draw particular attention to paragraphs 4, 5, 8, 9 and 10.

Justice Charles:

Yes, of what?

Mr Kuttapan:

Of the refusal of an application for review dated 17 August 1998.

Justice Charles:

So that is the Extended Reasons on the Review refusal.

Mr Kuttapan:

That is right.

Justice Charles:

So the paragraphs again?

Mr Kuttapan:

The paragraphs number 4, 5,8,9 and 10. If you look at paragraph number 4 Sir, you can find that the Chairman did not ask the Applicant's representative to address her as Madam, whereas the Appellant and me who categorically stated that in our affidavit. If what the Chairman says is right, what exactly happened? If you look at the response of the first two Respondent's register Counsel there is a reference that it so happened page number 53 you can see they have reached. So that is one of the points I am making. Though the Chairman denied or at least, one Counsel admitted that something happened.

Justice Charles:

Well that is not quite right is it as to what they say, because I think if you go to that page it is not quite in those terms. What the reflection of one of the Counsellors is that there was a reference that the Chairman in a polite way told you the correct form of address was Madam Chairman. That is I recall reading that document. So that does not record with that, the Chairman did not ask the Applicant's representative to address her as Madam. Correct on that version; your assertion is that she did.

Mr Kuttapan:

I appreciate Sir, but the natural fact is that if an incident happened which has altered the sentiment of form, they would be able to remember it better than anybody which does not harbour that sentiment. It is a natural psychological factor. So I and the Appellant have other people who have got a bitter experience or suffered. So naturally you would be able to remember about the incident better than either the Chairman or the learned Counsels.

Justice Charles:

I do not accept that. In the other way, if someone is upset they misremember or exaggerate something, it just simply does not follow as a matter of proof. You have to consider the circumstances in the evidence.

Mr Kuttapan:

Thank you Sir. Not only in this particular letter, the refusal of application for review, but also in the comments of the Chairman, the Chairman categorically denied any such thing. At least if something happened the Chairman could have told what happened; the Chairman did not say anything so that is one point I would like to make. Chairman never said any kind of discussion regarding that matter. Then if I turn to the next page in paragraph number 8, the Chairman categorically says that the last sentence in paragraph 8, "The Chronology of events is fully documented in the Tribunal's promulgated decision". The word "fully" means 'entirely', 'totally' …………(?). If that is the case I……..(?) It is not stated anywhere in that promulgated decision that the Chairman had it told the Appellant or me that the case would be proceeded even if we left the Tribunal. It is not stressed anywhere in the promulgated decision that the Appellant is warned that he will be liable for costs if he did not present the case. So, the fact is…

Justice Charles:

That is not the chronology of events is it? There is clear evidence before us on paper which I understand you dispute from both Counsel, that it was made abundantly clear to you that if and when you walked out the case would proceed.

Mr Kuttapan:

Well in that case, why didn't they actually help mention that in the promulgated decision? It is not anywhere – that is a very important crucial piece of…..

Justice Charles:

That is maybe an issue that arises in discerning which person's recollection is correct. But the documents at the moment, you say you were not told; Counsel, in their recollection from their notes say that you were in round terms – well that is a straight issue of fact which will fall to be decided at some stage. What I am asking you is how can one decide it on the papers?

Mr Kuttapan:

Sir, if I remember right, what the reading, the Counsel statement does not say that, according to their notes they recollect what they said their recollection is. I believe actually if the Chairman said something they should have recorded it. The Counsel were writing down, they were learned experience barristers they were writing down what was going on. So if there was any such a discussion at least one Counsel should have at least write it. So both the Counsels were writing down the notes and in their notes it does not say simply, Sir, a word.

Justice Charles:

But have you seen their notes?

Mr Kuttapan:

Well I have not seen their notes.

Justice Charles:

Well then you cannot say what is in them can you?

Mr Kuttapan:

That is right. But reading their comments…

Justice Charles:

Can you?

Mr Kuttapan:

No Sir, but reading their comments Sir, it is saying, it is their recollection they did not…

Justice Charles:

Based on their notes as I wrote their comments. I do not know, I have seen no notes either. I do not know whether it is in or not in their notes, but what you cannot do and what I cannot do is to make assumptions as to what is or what is not in their notes.

Mr Kuttapan:

But when they are speaking about something, yes, they said their notes say so, their notes shows that. But when they are mentioning about this specific matter they did not say their notes record like that. So naturally one can come to that conclusion.

Justice Charles:

You may be right yes. But we cannot tell until we see the notes can we?

Mr Kuttapan:

In paragraph 9, it is saying that the Applicant was aware that costs might be awarded against him before he left the Tribunal room since this issue had already been raised by the Respondent's representative. That means the plural forms are used. Both the Respondents representatives. But if you turn down the page…

Justice Charles:

Can I just stop you a minute. I understand all these points you are making are points that could be made to say a Tribunal should prefer this affidavit put in by you and by the Appellant when deciding what actually happened during the course of the hearing. The point I would like you to address is whether no not we can decide between what are starkly competing versions of events – I take all these points as points which you would seek to argue in favour of saying, 'well, you should accept that my recollection is the more accurate recollection'. But what I am having difficulty with at the moment is how we, as a Tribunal, can conclude that without hearing oral evidence from you and from Counsel who appeared for the two Respondents and possibly, but only possibly, from the Tribunal itself.

Mr Kuttapan:

Yes and I fully agree with that one. I agree with that.

Justice Charles:

I take all these points as points that you would make in argument when you say to us 'I gave my evidence, look at these points, these are points which support me', but if because there are, if I am going to say stark disputes, which can be put either in the sense that one side or the other has simply misremembered, or that one side or the other is not telling the truth about what was going on. The result is the same. One has to find out and make a finding as to the exchanges that took place between essentially you and the Madam Chairman of the Tribunal and what caused you and your client to walk out of the room. Because that is the common fact that you did walk out. The dispute is as to why you walked out.

Mr Kuttapan:

Yes Sir. I fully agree with you Sir, this is not practicable to come to a correct conclusion simply by hearing. You need to see all these documents.

Justice Charles:

Yes, thank you.

Mr Martin:

Sir, the position so far as the First Respondent is concerned and I think so far as the Second Respondent is concerned, is that we propose, Sir if you and your colleagues are in agreement, that perhaps the appropriate thing to do might be to adjourn for a slightly early lunch so that myself and my learned friend can look at authorities in this area. The only thing that we have got at present is there is reference in a case that appears in my Skeleton Argument which is Greenaway v Harrison where there is a quote from Balkan J in a case called Whinney where he says that certainly in relation to people who sit in a judicial capacity that it would be wholly undesirable to have them attend….

Justice Charles:

No I accept that it is wholly undesirable but that does not mean that sometimes it does not happen.

Mr Martin:

Well, Sir yes, and that is why we want to investigate the authorities.

Justice Charles:

There is a case called Roberts in this Tribunal which actually finds that you would simply prefer the Chairman, and it goes through a whole range of authorities but we are simply not prepared to accept it. There is another decision of mine in this Tribunal saying that we are not prepared to accept it so it is left open at the moment. That is the point on the authorities. You can research as much as you like, it is open and that is why we are concerned that this is a case in which one cannot say, as quite often one can, accepting what the Appellant says the objective observer would not perceive bias or procedural unfairness. Equally, one cannot say in this case it seems to us, accepting what the Respondents say, nonetheless, there was bias or procedural unfairness. Therefore we are left with what is the underlying factual position, namely, what caused the Applicant and his representative to leave the Tribunal.

Mrs Marsland:

When reading this case myself before coming here my view is precisely that found by the Chair; how can the Court possibly make a judgment on what is before us when we have two such conflicting positions from both sides and nothing in the middle?

Mr Martin:

Well I understand the difficulty but these matters are usually dealt with by affidavit evidence and of course the additional factor in this case is that not only is the Chairman's view that there is no impropriety, but that is additionally the view of both Counsel ….

Justice Charles:

So what. This is a stark issue of fact as to who said what to whom and why should we prefer the evidence of four or three legally qualified people to the evidence of a legally qualified representative of the Applicant and the Applicant. This is a stark issue of credibility. And I do not think it is right that any Tribunal should proceed on the basis that we prefer "x's" written evidence because of who they are.

Mr Martin:

Well Sir, I am not suggesting it is on the basis of who they are, I am saying there is the sheer weight of evidence; we have at least three people on one side saying the one thing – all their accounts are consistent with each other; Mr Kuttapan's account conversely is actually inconsistent in some of its terms. For example he says in part of his affidavit that he was not warned about cost consequences and then later on in his affidavit he says that costs were discussed and I said that the Applicant would not be responsible for them. So the matter is considerably more complex than merely deciding who is legally qualified and who is not, and who is a Chairman and who is not.

Justice Charles:

The underlying dispute here is one of fact. The general proposition is that one cannot decide stark issues of fact simply on affidavit evidence. I accept all the problems as being difficult and you do your level best to avoid having to go into fact finding exercises in this issue. I am not, subject to being corrected by my colleagues, and I have not asked them to grant you an adjournment over lunch time, because my researches into this show that it raises very considerable problems. Particularly because it also seems to me at a point that should have been researched by both Counsels before they came here because it is a stark point. If you are going to be inviting us to make findings of fact on pieces of paper it screams out I would have thought that one would need to come under some authority on that. This is a matter which raises points of general import which can not properly be researched in an hour and a quarter.

Mr Martin:

Well, so what I would say is that we would be grateful for that time but the matter came on for Preliminary Hearing before Morison J and none of these concerns were raised at that time. Consequently it never dawned on me, and I think that I speak for my learned friend also in that regard. It was not a matter that was raised at the Preliminary Hearing. If I could just flag one additional point at this stage as well. I was going to actually start the hearing today by making a couple of objections in relation to documents that Mr Kuttapan had advanced before you Sir and your colleagues today. The point that I raise at this stage is that there are now new allegations against Mrs Silverman that are forwarded by Mr Kuttapan by his advancing letters referring to another case where allegations against Mrs Silverman are made. And I would say that if we are to proceed down this route, that it should be made clear that only the allegations which have been properly adduced in accordance with paragraph 9 of the Practice Directions, namely, providing the Chairman the opportunity to comment and parties the opportunity to comment, should proceed, and that any further sweeping allegations which in my submission are in any event not relevant because they are plainly after the case and plainly concern entirely different people and are indeed written by people who are not concerned with this case. Then I would at least suggest that the Appellant not be permitted to shift the ground once more. But my primary submission is that for the sake of 15 minutes, myself and my learned friend would be very grateful if we could now take a look at this point which is of immense significance. I am not aware of a case where a Chairman in the Industrial Tribunal has been called to be cross-examined by a party, especially a party that has then sought to raise new allegations later on. Sir for the sake of 15 minutes, I would be grateful if me and my learned friend could have an opportunity to research this point which after all did not tax Morison J at the Preliminary Hearing.

Mr Bryant:

Sir, may I just say this on behalf of the Second Respondent. My principle reason for requesting an early lunch adjournment is that I simply have no formal instructions on this point. It is not a point that I had anticipated arising today, certainly in the light of the way that the President dealt with it at the Ex-parte Hearing.

Justice Charles:

Well I can see that the President said that it should go straight on for a full hearing. Alright, I will give you till 2.00pm, but the case that I think that you might find of assistance which lists a mass of cases dealing with this is a case called Roberts v United Friendly Insurance Plc EAT/1436/95 and I am afraid I cannot give you the two judgments as I have given saying the number that I refuse to follow them.

Mr Bryant:

I do not imagine one would be able to dissuade you from those very easily.

Justice Charles:

I should also say that the President is also not prepared to follow them. So I think that what is does demonstrate is there is a mass of authority which goes both ways as to calling people like Magistrates and members of Tribunals and the disadvantages of doing so and that you should only do so as a very last resort. The conclusion of that case is that it is simply a matter of public policy. You should never call them, and I am afraid I do not agree with that, although I am persuaded that you should only call them in the last resort. I can tell you my thinking from that case and the difficulties that arise here I think do have far reaching effect is that it is a matter which needs to be dealt with fully. I have discussed this with the President to be, who also feels the matter should be dealt with fully and as I said earlier I think the appropriate course would therefore be that an Amicus should be instructed which also has the advantage that some of the expense and burden is thrown upon the Respondents of these general points should be emunerated because the general background law would be dealt with by an Amicus and also it does seem to me, and if your research is to indicate on this I would be grateful for it, that the Tribunals themselves should be given an opportunity to appear. If you look at the case of Goth which you both cite in your Skeleton the mass of decisions deal with Magistrates. They also do it in context of judicial reviews to which the Magistrates themselves would be a party, but I do not quite know how it is then being dealt with.

Mr Bryant:

You will have seen in the ASI transcript that I handed up that the Birmingham Employment Tribunal in that case was ultimately joined as a party to the appeal in the Court of Appeal.

Justice Charles:

No I had not seen that, I will have a look at that.

Mr Bryant:

And effectively Counsel instructed on their behalf was acting as an Amicus.

Justice Charles:

Well that is right but I think that I prefer at the moment to take the course of definitely, subject to what you come back with, but what we presently have in mind is to adopt the course whereby we would invite an Amicus in any event because then we would give the Tribunal the opportunity if they wished to be represented and we would set a directions hearing before the President for two days and have to try and find a date as soon as possible in the next term. And we would also set a date now for the full hearing of this so that you do not wait till post directions, so that you can get this thing done as quickly as possible.

Mr Bryant:

You may have difficulty with witness availability.

Justice Charles:

You may well, but if you have set it at a certain point then people may have to be abandoned but

at least you do not start fixing it as a date two months hence which means that is inevitably two

or three months further down the line.

Mr Bryant:

Can I just reserve my position on behalf of the Second Respondent on all the points you have made and come back to you after lunch.

Justice Charles:

Of course yes, but I think that it is right that we should tell you where we have got to as to the points raised. The office may be able to assist you with the Roberts case, it may be able to assist you as well. I am afraid I do not have a copy – I did and I have lost it.

Mr Kuttapan:

May I kindly ask to bring one particular case Pinochet #2.

Justice Charles:

Yes, Pinochet #2 I think you should also look at because it raises a question as to whether the approach in Goth is the correct approach, namely where the real danger is, the correct point and I think you will find that the relevant passage in the speech of Browne-Wilkinson LJ in which it supported 1999 two weekly law reports 272 Pinochet #2 and the speech of Browne-Wilkinson LJ 284 E-G as I read it, he raises but leaves open the point that the test in Goth may need to be reviewed as to whether it is one of real danger or one that gives rise to reasonable apprehension or suspicion. The differences between the two in given circumstances may not be entirely clear but that qualifies Goth. But I do not think that is a matter that we have to grapple with in any great…

Mr Bryant:

It is something that is flagged up in any event by Simper I think that they deal with it in…...

Justice Charles:

Well Simper is pre Goth of course and is undoubtedly the case which deals with this jurisdiction and tells us as indeed Goth does that you have to take an objective approach from the objective observer standing in the back of the room who knows what the case is about.

Mr Bryant:

Of course but the Court of Appeal in Simper deals with it on the basis of whether an objective observer would reasonably gain an impression of bias.

Justice Charles:

Yes but then Goth overtakes that and says that you have real danger and they go through all those cases, but in fact Lord Goth in Goth as I read him is not entirely in line with Lord Woolf in Goth and therefore we are left we some degree of difficulty. I think it is not a matter that troubles us today, or ever I think in most cases.

LUNCH

Mr Martin:

The first point that I would like to raise is this; the law relating to the accuracy of Chairman's notes is to my mind relevant in this connection.

Justice Charles:

I am afraid you have got authority against you for that from me, in a case called Usman. I do not think it is relevant in this connection, it is a different issue. It might be relevant but it is not decisive.

Mr Martin:

Well, Sir what I would say about this case is that my learned friend tells me that Mrs Silverman typed on a laptop issues going through a case and therefore the likelihood is that there will be valuable Chairman's notes in relation to this case. The Applicant has made a request on the PHD form for the Chairman's notes and I would ask the Appeal Tribunal not to make the weighty decision it is contemplating today before it has seen them.

Justice Charles:

What weighty decision do you think I am about to contemplate?

Mr Martin:

To invite the Chairman and Counsel to be cross-examined.

Justice Charles:

Well I have not said that yet, we have said we would give directions as to how this case should be dealt with which is a different thing.

Mr Martin:

Sir yes, but what I would have to say about the Chairman's notes is this. If as may well be the case, there are substantial notes which bear out the Respondent's side of the story, then the settled law is that if one party is in agreement with the Chairman's notes, then those Chairman's notes will prevail over any conflicting…

Justice Charles:

Well that settled law is as to evidence given in the Tribunal, that is what that law relates to which is a very different thing to an allegation being made against the Chairman as to the Chairman's behaviour in respect to the Chairman's notes.

Mr Martin:

Well Sir, that is right so I am going on the caption that I got in Hardy but what I would have to say is that to my mind where the Tribunal is faced with contemplating making a decision to call or invite the Chairman, there being no authority on that point, one has to have a look at authorities from the areas of law that are similar and Sir I would submit and my learned friend has the case, he has had the opportunity to read it and he will say more about that. Sir, an additional factor that I wanted to mention, point two, is that there has already been a pre-hearing review in this case and that no directions were made at that stage as to the calling of live evidence in order to sort out this problem in relation to bias. In my submission that is a further reason why this is not the appropriate case to adopt a procedure which to my mind has not been adopted in any previous case.

Justice Charles:

Well then would you please tell us how we can decide this case without doing so?

Mr Martin:

Sir in the normal way by having a look at the affidavit's evidence and determining what is most likely to have happened. Having regard to….

Justice Charles:

How can that conceivably be fair?

Mr Martin:

Because, Sir, there is no authority for doing it any other way.

Justice Charles:

We are now meant to look at the European Convention on Human Rights which tells us, unsurprisingly, that one has to conduct a fair hearing. How can we fairly, without considering whether or not we should hear oral evidence, decide on paper two highly conflicting issues of fact?

Mr Martin:

Sir, we are not talking here about ordinary witnesses. The Industrial Tribunal's may well be creatures of statute but at the end of the day their role in determining cases is the same as a High Court Judge albeit in a different Tribunal. And Sir, if an invitation was to be given to the Chairman of the Inferior Court in this case to attend the Employment Appeal Tribunal then firstly it raises the question as to how would one deal with that invitation; one could hardly refuse. And then if one is faced with the situation where the Chairman is actually called to give evidence, then there is no logical stopping point from that to having a High Court Judge attend the Court of Appeal to be cross-examined on his or her evidence…

Justice Charles:

But what is wrong with that? What is so frightening about that? If I was accused of what this Chairman is accused of I would be leaping to get into the Court of Appeal to give my evidence about it. Another factor is that there is a transcript of a High Court case which may in the order of Chairman's notes here. If you have an issue of fact as to the behaviour of a Judge or a Tribunal which has to be decided you simply cannot, well our initial view is, there may be issues this is why we want further argument about it, but how can you simply say because it is a Judge or a member of a Tribunal saying it, one must accept it?

Mr Martin:

Sir, I am not saying that the mere fact that somebody is a Judge is that someone should accept it. I am saying that one should extend the principle in relation to Chairman's notes to say that if a party is prepared to support that version, then one should accept it and I am additionally saying that there are reasons of public policy why Judges should not be called, because then in any case where it is having…

Justice Charles:

Yes but I am not saying issue public policy without an Amicus being in it, that is why I am suggesting there should be an Amicus.

Mr Martin:

In order to determine the question?

Justice Charles:

Yes, this is what we said before you left at lunchtime we were suggesting there would be a directions hearing to determine how this issue of fact would be dealt with. That would hear argument on the issue as to whether or not for example as a matter of public policy, which is the Roberts case, Chairman or wing members of Tribunal should be called to give evidence. Alternately it happens not infrequently that barristers are called to give evidence as to what has happened in a case, particularly as to settlements. I have done it myself. So I see no reason why the representatives both from the bar and the solicitors should not be giving evidence as to what has occurred in the Tribunal.

Mr Martin:

Sir, well, what I am saying is that it is not appropriate even to go that far I am so instructed and the reason for that is that if one were to contemplate calling a Judge effectively before a superior Judge who would then be cross-examined on what happened at the hearing, there is no logical stopping point and if it were good law that one were able to do that, then there would be examples in the 800 Common Law history that we have. In my submission there is no authority for convicting an appeal or any hearing in that way as to treat the Judge as a witness.

Justice Charles:

It may well be that one does not call the Judge but that does not mean that we do not call you and we do not call you either.

Mr Martin:

Well Sir it will not be me because I was not at the original hearing, it will be my predecessor who I understand has since left the bar.

Justice Charles:

Well even more the reason we can call him then.

Mr Martin:

Her.

Justice Charles:

Her.

Mr Martin:

But Sir, my position in relation to the Judge remains the same and if one was in the position where an invitation was not extended to the Judge, then one would be trying factors without the Chairman, in this case, giving input and therefore one would be trying it on incomplete evidence if one was to allow cross-examination on affidavit. So therefore the position is either one does not call the Judge in which case one decides the matter on half the evidence, which will not ally the fear of the Appeal Tribunal because the fear is that it cannot be determined without cross-examining the deponents on the affidavits. Alternatively one extends an invitation to the Chairman below and what is the Chairman to do in those circumstances other than to accept it? And in those circumstances you have a position where in my submission, subject to what you and your colleagues will say Sir, for the first time in our Common Law history we have a situation where a Judge is being called before a Senior Court in order to be cross-examined or how the hearing went. In my submission there is no authority for that and there is only a justification to call an Amicus on the point when there is some arguable authority on the point and in my submission there is no authority on the point where this can be done. If it were so then it would have been discussed in Goth.

Justice Charles:

I do not see why it should be discussed in Goth. I have never heard it said that because there is no authority you cannot argue a point. I think Lord Denning might be revolving in his grave if he heard that.

Mr Martin

When a point of law is novel, then yes, but this circumstance would have arisen time and time in the past.

Justice Charles:

Yes and I would like to see and hear submission as to how it should be dealt with.

Mr Martin:

Well Sir, I have made my point and I do not think I can say anything more. Thank you.

Justice Charles:

Yes you have. Thank you.

Mr Bryant:

Sir I hope I can deal with matters very briefly and hopefully without overlapping what has been said already. From the comments that you have made Sir, I take it that you are not wishing to hear all the full arguments as to how this matter should be proceeded. You are merely looking at a further directions hearing on another date to deal with those matters in detail

Justice Charles:

I accept there are points of public policy which arise as to how one deals with, and they are dealt with in some length in the Roberts case which I referred you to, and one is left with a very difficult or potentially very difficult decision which seems to me is one which this Tribunal needs to grapple with as to how it deals with allegations which unfortunately are made more and more frequently of bias on behalf of Employment Tribunals.

Mr Bryant:

Well Sir, let me put it this way that is exactly what this Tribunal did in the case of Roberts and the answer was very clearly given having considered, as far as I am aware, of all of the relevant authorities. It was dealt with in detail in the judgment and the answer came back crystal clear. And not just purely on policy grounds but in the circumstances of that case it was decided to deal with it in that way and for this Tribunal simply to go through the process again it is …..

Justice Charles:

Well you have already been through it, I have been through it twice and refuse to follow Roberts so they are obviously different….

Mr Bryant:

I have one of the judgments that you gave; Edgerton…

Justice Charles:

I do not remember him.

Mr Bryant:

… is the other earlier this year. Whereas in that case you did not need to decide the point.

Justice Charles:

I do not think I have ever had to decide the point but in any case I am not prepared to follow Roberts.

Mr Bryant:

My submissions are based on this. That you are thinking not today to give directions but more to adjourn today to another occasion on which……

Justice Charles:

It seems to me that very difficult wide ranging issues arise when it is not possible to decide an important and central issue of fact on paper. Here we are of the view, having read the papers, that it is not possible to decide that issue on paper. It is simply not fair to the Applicant to decide that on paper.

Mr Bryant:

Can I address you on those matters and a few other matters. I will not take you through all the policy arguments because as I have said from your earlier comments that those are matters for another day. You did make mention of cost earlier, and you said something to the effect, and I hope I get this accurately summarised, that will much of the cost be born by an Amicas so there will not really be that much to the disadvantage of the Respondents? Well, it may be right that the Amicas would do a lot of the legwork as it were, but the Respondents would have to instruct their new solicitors, in fact both of them.

Justice Charles:

Why?

Mr Bryant:

Well, it may well be, my instructing solicitor was present in the Tribunal.

Justice Charles:

Well that seems to be a matter that can only be dealt with on a proper directions hearing as to whether or not there is a need to do that. It seems to be one of the practical matters that should be dealt with, it does not mean that it is an unsuitable problem, it does not necessarily mean that this Tribunal hearing that should not permit, as happens in other cases, that barristers and solicitors give evidence from the bar. We can well see that these are the sorts of issues that need to be addressed and addressed properly.

Mr Bryant:

Well, I simply say this. It is inevitably going to add significant costs.

Justice Charles:

Of course it is. But that is unfortunately one of the features in a way of all litigation compounded in this jurisdiction by the rules as to costs.

Mr Bryant:

Well, you have my next point precisely, and it is inevitable that certainly oral evidence is to be given for this by the Chairman and/or other people to a lengthy hearing.

Justice Charles:

But you are inviting us on paper to find that the Appellant and his representative are not telling the truth. That is your position.

Mr Bryant:

That is my first position, yes. It is the position that is put to this Tribunal on numerous occasions and has been put to this Tribunal on numerous occasions in the past.

Justice Charles:

And I have not actually found – can you point me to a decision where someone has said he is not telling the truth? Certainly not what they do in Roberts.

Mr Bryant:

Well, in Roberts they say, in terms, we can conceive of no circumstances in which a member of an Industrial Tribunal would be called to give evidence before this Appeal Tribunal in relation to his conduct in the course of the proceedings below. We shall proceed on the basis that where there is a conflict we shall rely on the account given by the members of the Tribunal.

Justice Charles:

But that is not a finding that somebody is not telling the truth, that is a finding based on public policy – but you are stuck, you cannot do anything about it. And it does seem to me to find that to fly in the face of anything reporting to be a fair trial

Mr Bryant:

As I have said, I am not going to go through the policy arguments in detail but this is…

Justice Charles:

No, I agree there is a policy argument there, which you may get round it. You can get around it here because you do not – you are certainly not driven to calling members of the Tribunal in this case.

Mr Bryant:

Well it is effectively giving a licence with respect to a disgruntled litigant in the Tribunal to raise all manner of allegations about conduct of the Tribunal or anyone else, in the sure knowledge that it is going to get through to the substantive hearing for the Employment Appeal Tribunal where they will have a chance to have a go at the Tribunal in the witness box.

Justice Charles:

But what happens if it is true?

Mr Bryant:

Well, it is a matter for this Tribunal to weigh the evidence up in the balance as it is..

Justice Charles:

Well we have weighed it in the balance on paper and we do not think we can make a decision on paper.

Mr Bryant:

Well can I come to another point then. I have dealt with the policy in brief. I say Roberts is right and I think you have already indicated that you disagree with me on that. But the calling of oral evidence in my submission must be an absolute last resort in these circumstances and in this case we have not got that far. My learned friend has already raised one matter which is the question of the Chairman's notes. It is right that they are not Notes of Evidence because Mr Kuttapan left before any evidence was actually given, but the Dexing Authority which is the EAT case, Cummin-Briggs J, I believe that deals with the question of the conclusiveness of the Notes of Evidence [1977] ICR 434.

Justice Charles:

Do we have that, or not?

Mr Bryant:

I am afraid I did not give that to you. It was not something that I

Justice Charles:

Yes, sure. 1977?

Mr Bryant:

1. I have a spare copy from the electronic printout from the Industrial Cases Reports and it is towards the very end of the judgment, the last two pages, last paragraph of 438 and then over the page where this matter is dealt with. And I concede as I must that this is not a case where one is looking at Notes of Evidence, but nevertheless by analogy, if there are, as one imagines there will be, notes made by the Chairman at the hearing in June 1998, then that is in my submission, helpful evidence to put in the balance.

Justice Charles:

Of course it is, but it does not go any further than that does it?

Mr Bryant:

Well, we have not got that yet, so one is not at the stage of saying, well have we got to the absolute last resort where we need contemplate oral evidence? Answer in my submission; no, because we do not have the full paper. You said that we cannot decide it on paper, with respect you do not have all the paper before you necessarily. Further….

Justice Charles:

Well let us assume the Chairman's notes are word perfect to the Chairman's comments.

Mr Bryant:

Then that is another matter to put in the balance

Justice Charles:

Yes but it can only ever be a matter to put in the balance. It does come back to if one is dealing with the stark policy issue if you like, or the stark issue, whether or not when allegations of bias are raised it is going to be an exception to the general principle that you cannot have oral evidence to make findings as to the underlying factual premise to which the competing public policy arguments go, Chairman's can behave as badly as they like because they can give a version of events and that is always going to be accepted which I find difficult. I can see you do not say, 'oh it has to agree with the other parties account', but it is likely that for a number of reasons that a party who does not wish a Chairman's decision to be overturned would no doubt think the Chairman had not acted inappropriately or a biased way.

Mr Bryant:

Well Sir, you would have the Chairman's notes, you have the Chairman's comments if necessary and this, in my submission, would be wholly exceptional, one could invite the Chairman to put those comments on affidavit. You do not yet have notes from the wing members. That has been done in previous cases, it has not been done in this case. You have the comments of both Counsels for the Respondents who appeared and you made a comment earlier Sir, 'why should I accept what they say and the Chairman says rather than the Applicant?' Mr Kuttapan has a legal qualification but it is not a British qualification as you would be the first to concede.

I, First Respondent's Counsel for the Tribunal, my instructing solicitor, her instructing solicitor, we all have duties to this Court. It is a primary and fundamental duty to this Court and again that is something in my submission that should be put in the balance and should weigh accordingly. There is also this point. The matter has been expressly dealt with in this Court's Practice Direction. It is obviously something that has exercised the minds of those when drafting Practice Directions and the latest Practice Direction deals with a specific procedure to be dealt with where there are complaints about the conduct of the hearing by the Employment Tribunal. It is the very heading of paragraph 9 of the 1996 Practice Direction. It envisages, as clearly that the current President of this Tribunal envisaged at the hearing in February, the correct course is to ask for the Chairman's comments as the Practice Direction sets out; the Appellant and/or anyone else he chooses having put their side on affidavit evidence. The President in February took again the exceptional course of saying, well, serious allegations I would like to see what the Representatives have to say about it. But that was clearly, in my submission, envisaging today's hearing dealing with the matter on paper.

Justice Charles:

Well I think I have the advantage of you there because one of the members of that Tribunal is sitting on my left. So I actually know what was going through the minds of that Tribunal.

Mr Bryant:

Well, then I cannot seek to persuade you otherwise.

Justice Charles:

I see that you could make that inference but I think you will find that that is not correct, because they wanted to know what was being said, because it may well be that the Representatives would have formed common cause with, because of the duties that you have to the Court in the recollection of events which would substantiate sufficient of the allegations being made against this Chairman to enable the Court to deal with the matter on paper. What has actually happened is that there is a stark dispute of fact.

Mr Bryant:

But if this Tribunal were prepared to deal with it on paper if Counsel had supported what the Appellant says, but are not prepared to…

Justice Charles:

Might be.

Mr Bryant:

Might have been, but are not prepared even as far as one can tell to consider it where Counsel other than supporting the Appellant, support the Chairman, then it is a slightly odd situation.

Justice Charles:

It is not particularly because you get yourself to finding a common ground on paper, particularly when you are looking at the impression that a Court or Tribunal is given to the litigants in front of that Court or Tribunal in which you can move forward without having to resolve the stark issues of fact.

Mr Bryant:

It would have been extraordinary in this case if that were possible, if you look at the affidavits from the Appellants side and you look at the Chairman's comments, the contrast is stark from the start. There is nothing that I could say that would really find any middle ground there.

Justice Charles:

No, but the middle ground would come between the people who are appearing before that Chairman.

Mr Hodgkins:

I was only going to say that I do not think that you can draw inferences as to what was really expected to happen or certain to happen at the stage following the Preliminary Hearing last time beyond the fact that it was thought that the material from the two barristers would be helpful and it then had to be considered. It was not necessarily laying down a certainty that the matter would be soluble then by this Tribunal with one further hearing.

Mr Bryant:

If that was the case then so be it, but it is again, certainly the impression one gets from the judgment of the President and the direction that we will have an Inter-partes Preliminary Hearing to decide whether these points are even arguable, including the balance point, and we will then today go on to the full merits hearing of the appeal if any matters are let through, certainly gave me the strong indication that this was not a case where we were going to look at it and then go onto directions and such.

Mr Hodgkins:

Well certainly that was an indication but it has not worked out that way in practice.

Mr Bryant:

May I have a very brief moment?

At the risk of repeating myself, the procedure to be adopted is clearly set out in the Practice Direction for this Tribunal. It is a long established and often used procedure. Of course it is a matter for this Tribunal where there are conflicts of fact which need to be resolved at this level to resolve them. But it is perfectly permissible, proper and in my submission in this case, appropriate for those issues to be resolved on paper. If you Sir and your colleagues are not satisfied from the paper that you have thus far, that you are in a position to resolve those issues, then as I have said one can order the Chairman's notes to be produced, ask for comments from the wing members, and there are various other avenues before one even gets to the stage of thinking about directing that oral evidence be given. The giving of oral evidence by a member of the Tribunal before this Tribunal would be a very dangerous precedent to set in my submission, the consequences are likely to be very serious. It has never been done before and in my submission now is not the time to start. As I said earlier, I take it from your earlier comments that your reference to an Amicas and such would be envisaged…

Justice Charles:

I do not know how many times I have to repeat myself as to what we were envisaging. It was not making an order that oral evidence would be given of any sort. I thought it was perfectly clear as to what we were saying, that we wanted to have this matter dealt with properly, with proper assistance which we think will require the help of an Amicas which will raise all these points which you are putting to us on the benefit of an hour and a quarters research which is simply plainly not enough to deal with what are in fact quite difficult points.

Mr Bryant:

I would like to think that I have done a little bit of work on it before lunchtime but I hear what you say.

Justice Charles:

Well alright. Certainly as you said, it was not a point you came thinking you were going to be dealing with.

Mr Bryant:

It was not a point I thought I was going to have to argue in detail, no. I do not think that I can assist you further.

Mr Kuttapan:

I have been patiently and carefully listening to what ………………(?)have been speaking Sir, but I strongly believe that in the interests of justice it is extremely important and necessary to find out the real facts, what exactly happened there and therefore I believe Sir, it is necessary to examine the Madame Chairman to ………..(?) in the Employment Tribunal. I remember that from time ………..(?) the Honourable Justice and Judges of the Employment Appeal Tribunal have given valuable voice and guidance to the learned Chairman of the Employment Tribunal when discrimination cases are being dealt with. So although I understand it may be a little bit expensive and time consuming, I think in the interests of justice I strongly believe that the oral evidence, particularly the evidence from the Madame Chairman, is extremely important Sir.

PROCEEDINGS cont.

POST JUDGMENT.

Mr Bryant:

Sir, may I make two comments? One is on the last matter you dealt with. It is simply this, that until I know whether I am to be instructed and until an Amicas is instructed, until one knows what the position is going to be, it is going to be very difficult to list any hearing and I would invite you to direct, if your directions are to the contrary, that it be dealt with in the usual way by liaison between listing and Counsel's clients.

Justice Charles:

Yes, I think it could be listed in the normal way, but those steps are to be taken now to find a date at that time because I want it to be actually listed. I am not suggesting that I am setting the date now, but what I am envisaging is, or what I am hoping for but it is not for me because I do not run the listing, is to say that the matter will come on before hopefully the President in October.

Mr Bryant:

It was merely your comment that you directed a date be found now for the full hearing.

Justice Charles:

What I mean is that that should be taken through the usual channels and I will direct that if one is not fixed through the usual channels within seven days from today, then the offices of this Tribunal are simply to fix the dates and then people will have to work around those dates. But certainly if a convenient date can be agreed then so much the better.

Mr Bryant:

The only other matter is this. I am told that if a transcript is required then now is the time to ask for it and I am instructed to make that request, a transcript of today's hearing.

Justice Charles:

Oh yes, there will be a transcript automatically – of the whole hearing or just the judgment?

Mr Bryant:

Of the whole hearing.

Justice Charles:

Well you can have a transcript of the whole hearing if you want to but you will obviously have to pay for it.

Mr Bryant:

Of course, I had not anticipated a free one.

Justice Charles:

I think you do not actually have to pay for the transcript of the judgment. I think that will come

back in a corrected form in any event and be given to the parties.

Mr Bryant:

We will have the whole thing in a bill. Thank you.

Mr Martin:

Sir, I have got just one or two further matters that I would appreciate guidance on. I have got no instructions on what sort of transcript I should be asking for.

Justice Charles:

No doubt a photocopy of their one I should think.

Mr Martin:

Sir yes.

Justice Charles:

Well you probably cannot save some money because there are actually rules of copyright so far as that is concerned, jealously guarded as I recall it by the High Court, but I mean they can make arrangements so far as that is concerned in not having two lots transcribed. I am not sure how it works here, but anybody who wants a transcript can have the necessary leave to have it. But there is not much point in having three lots typed out separately, it may be better to make arrangements amongst yourselves as to how you do that.

Mr Martin:

Sir yes, we will do that. I just wanted some direction in relation to the two preliminary points I was going to raise today, namely:

(1) reference to confidential settlements, the Appellant's Skeleton Argument, and

(2) a matter I alluded to earlier on – the adducing of documents concerning more allegations against Mrs Silverman in relation to other cases in circumstances where obviously Mrs Silverman has not in accordance with paragraph 9 of the Practice Direction had the opportunity of answering the broad and sweeping allegations made in those letters.

Justice Charles:

It seems to me that that is probably a matter that should be dealt with in at the next hearing, but

that does not mean that Mrs Silverman and the others have to comment on the allegations which are new and what I will direct is that the Applicant is to notify both Respondents within 14 days from today of all the allegations he is proposing to advance on this appeal. You will then know which if any are additional to the ones that have been commented upon.

Mr Bryant:

That is presumably without prejudice to the Respondent's position to object to any amendments.

Justice Charles:

Absolutely. This is a notification to the Respondents and the matters, if the Respondents object to any of those allegations being advanced that is a matter which they can raise at the next directions hearing.

Mr Martin:

This is certainly a matter to be dealt with at the next hearing and the first matter is of course that in relation to the reference to confidential settlements, this had been reached, that is a matter referred to in paragraph 16 of Mr Kuttapan's Skeleton Argument. Mr Kuttapan will know that these are confidential settlements because he signed both of them and one of them concerned him as a party.

Justice Charles:

There are two points there aren't there? One is the fact that there were settlements is not confidential is it?

Mr Martin:

Sir, yes, because…

Justice Charles:

Well how can that be confidential because they were no doubt done in open Court. They were not. They were done outside Court? How can the fact that the settlement be confidential?

Mr Martin:

Because the terms of the settlement provide that the settlement will be confidential.

Justice Charles:

The terms of the settlement are confidential but the fact of the settlement, why is that confidential? So you can never tell anybody that you settled? Is that what you are saying the provisions of those settlements are?

Mr Martin:

Sir I shall just check the very wording of the settlements.

Mr Bryant:

Sir, if I can assist without clouding the issue, my client, obviously he was not party to any of these settlements, so from recollection the only matters that were dealt with before the Tribunal were simply withdrawal of the Applicant's claim and certainly in open Tribunal he might be included in that.

Justice Charles:

On the basis that they were settled I would have thought.

Mr Bryant:

Well, as far as my client was concerned on the basis that there was a withdrawal and any terms agreed between the other parties I cannot comment.

Justice Charles:

If a further Tribunal thinks that they are relevant, the fact that they are confidential is neither here nor there is it?

Mr Martin:

Sir, perhaps it would be more appropriate for this to be dealt with at the later hearing.

Justice Charles:

I think it would be because it will be part and parcel of the point which you have just identified as to what ground the Applicant wishes to rely on. He may abandon reference to other settlements. You say they are irrelevant as I understand it; not only confidential but irrelevant. But the general law would be that if they part relevance then Science Research Council v Massey would tell us that they are perfectly open to inspection by the Court. But I think the answer to that is that any points as to the detail of the case should be raised at that next directions hearing when the issue as to relevance of those settlements and admissibility of evidence relating to them and documents relating to them will be dealt with.

Mr Kuttapan I think it is very important that you go away and identify precisely what you regard as being the relevant and important features of your allegations made on behalf of your client particularly having regard to the problems of introducing, without prejudice, communication and confidential communication into the proceedings.

Mr Kuttapan:

Yes Sir, what I understand is actually in a competent Court of jurisdiction I can actually disclose that information.

Justice Charles:

Well I think you are not right about that, you can only disclose it if it is relevant because you owe a duty of confidence to them, not to disclose it. If it is relevant then the Court can, subject to various processes of blocking out parts of the documents, or whatever, order disclosure.

Mr Kuttapan:

I was under the impression that in competent court of jurisdiction I can actually tell what actually happened.

Justice Charles:

Well you cannot on the basis that it is confidential. You can only do it if it is relevant. You must identify precisely to the Respondents in accordance with the direction I have given all matters that you propose to rely on, on behalf of your client. They will then identify which if any of those they object to and then that will be dealt with at the next directions hearing.

Mr Kuttapan:

But without the other letters also that I believe are relevant which actually I introduced later.

Justice Charles:

Well again that argument will have to be dealt with but these are without prejudice letters and again there are problems in introducing that as information. As I understand it, that was argued before the Employment Tribunal and the conclusion that was reached was that the documents would remain in the bundle and would cross that hurdle when the Tribunal came to it.

Mr Kuttapan:

Yes Sir, I think there was actually a misunderstanding. That is what the co-produced letter. It was a letter sent by another Applicant in a race discrimination case against Mrs Silverman to a Regional Chairman. It was not…

Justice Charles:

You must identify precisely all the material you rely on and at the next hearing, issues as to whether or not what some other applicant says about this Chairman and whether or not it is relevant and probative in this case will be decided by that Tribunal on that directions hearing. Is there anything else you have on those points?

COURT RISES