United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Paul Draycott Employed barrister Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Square Albert Square Manchester M2 4ER
For the Respondent	Ian Jones Solicitor Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF24 OEE


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, as an interlocutory appeal, the appeal of Mr Ian Roger Lewis in the matter Lewis v Corus Group Ltd. Mr Lewis has been refused leave to amend by the Employment Tribunal and he appeals against that. Today, Mr Paul Draycott has appeared for Mr Lewis, and Mr Ian Jones for Corus Group Ltd.
2. On 11 June of this year Mr Lewis presented an IT1 for redundancy money. He identified a Mr Rob Edwards as his representative; he said that he had been employed from February 1997 until April of this year. He had given in his notice in order to be able to start a new job. He felt, though, he said in his IT1, that he deserved a redundancy payment.
3. By 28 June of this year, solicitors had come in to act for Mr Lewis. On 6 July an IT3 was put in by Corus; they said he had not been dismissed but had resigned on 3 April and that his claim was frivolous.
4. On 27 July there was a letter of complaint by Mr Lewis' solicitors to the Employment Tribunal- they had not received the IT1 or the IT3 from the Employment Tribunal; it would seem that they had not received the IT1 either from Mr Lewis or his representative, Mr Edwards, but they had that day - 27 July - received the IT3 from Mr Rob Edwards. Mr Draycott has told us that they got the IT1 copy on 30 July. Some twenty plus days later, on 23 August, they applied to amend the IT1 to add a claim for disability discrimination and for unfair dismissal of the constructive dismissal variety. It was, said Mr Lewis' solicitors, merely a substitution of other labels for facts already pleaded.
5. On 3 September of this year that application to the Employment Tribunal was refused by the Employment Tribunal. The last words of the letter by which the application was refused say:

"and the chairman sees no justification for adding a totally new issue or issues at this late stage"

That, in fact, would seem to be the only ground on which the amendment is actually refused, on the ex parte application that by then the Employment Tribunal had received. That, of itself, is not a satisfactory ground for refusing leave to amend. We have the benefit of the observations of Lord Brandon in Ketterman v Hansel Properties Ltd [1987] A C 189 of 212 where, in what are later described by Mr Justice Mummery, as he then was, as uncontroversial terms, Lord Brandon summarises the proper approach to leave to amend. He sets out a number of factors, the third of which is this:

"Thirdly, however blameworthy, short of bad faith, may have been a party's failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should in general be allowed, provided that allowing it will not prejudice the other party."

So mere lateness, of itself, is not a good ground for refusing an amendment, unless, of course, it is accompanied by something such as the factors that Lord Brandon identifies, such as bad faith, or prejudice to the other side. So we get to a stage, so far, where there has been an ex parte application and it has been refused on a ground which, of itself, is not a good ground.

6. On 26 September, some twenty three days after the refusal, a Notice of Appeal was received at the Employment Appeal Tribunal, on behalf of Mr Lewis. No Employment Tribunal Rules specifically apply to the process of amendment. Up and down the country Chairmen commonly deal with applications for leave to amend made ex parte and in writing, and answer them by a written decision which is arrived at without having first consulted the other side. That is an acceptable procedure, at any rate in the first instance.
7. In many cases the Applicant who has applied ex parte and has been refused leave will accept the decision. But what is the appropriate practice when the applicant does not accept the decision against him? In most cases the proper approach would be for the losing applicant to ask the Employment Tribunal for an inter partes hearing - see Smith v Gwent Health Authority [1996] ICR 1044 EAT. It may also be prudent, out of an abundance of caution, for the losing applicant to apply to the EAT by way of appeal against the ex parte refusal but indicating that further conduct of the appeal may await the outcome of an inter partes hearing, if such is arranged or has been requested.
8. Here, strikingly, there was no request for an inter partes hearing made after the refusal of leave to amend. In our view there needs to be an inter partes hearing. Mr Draycott has addressed us with full argument, based on seven full authorities, and would prefer, no doubt, that we ruled on those authorities here and now. But we are an appellate body; he is, in fact, asking us to deal with an argument that has not yet been presented to the Employment Tribunal itself. It seems to us not correct to act in such a way. There needs, therefore, to be an inter partes hearing below.
9. If we have to, (which we will revert to below) we are able to indicate that there is an error of law in the Decision of the Employment Tribunal because, as we have already mentioned, the only ground relied upon, namely that the attempt to amend was at a late stage, is not of itself a sufficient reason to decline an application to amend. There was no suggestion in the Tribunal's letter that it was held that there would be prejudice to Corus or that the application was made in bad faith, and so there needs to be an inter partes hearing.
10. The Applicant will, no doubt, attempt to satisfy the Employment Tribunal that the amendment which is sought is no more than a re-labelling and that no new facts or no new disputable or controversial facts need to be asserted. But it is not improbable that that argument will run into some difficulties. It is likely that Corus will want to say that there are new facts, that this is not just a re-labelling, and that the amendments proposed represent new claims and, moreover, new claims that are basically out of time. There will then be likely to be some sort of contest on whether it is just and equitable that time should be extended to allow the claim out of time or, depending on the nature of the claim, whether it was reasonably practicable to have made the claim earlier.
11. So not only will the Employment Tribunal have to consider the nature of the argument based on the seven or so authorities with which Mr Draycott has addressed us but it is also likely to have to go into questions such as whether it would be just and equitable to extend time. All these matters have just not yet been gone into at all by the Employment Tribunal, nor have they even been asked by a party to be dealt with by the Employment Tribunal.
12. Another observation that we ought to make is that it is, if not merely useful, perhaps essential for the Employment Tribunal to see the precise words proposed by way of amendment, a thing which Mr Lewis' solicitors have not yet done. It is difficult to see how far a proposed amendment is a mere re-labelling or not when the words of the proposed amendment have not yet been disclosed.
13. In order to set the scene for an inter partes hearing it may, strictly speaking, be unnecessary for us to set aside the existing decision. It is an inherent part of any ex parte decision that it is susceptible to being undone or inter partes reviewed. But, in order to emphasise that the inter partes hearing is to begin with a totally clean slate, we think it appropriate to allow the appeal and to set aside the refusal of 3 September.
14. In doing so we emphasise that that is not to be taken as any expression by us, one way or another, as to whether the proposals for amendment are or are not a mere re-labelling, still less, if they are not a mere re-labelling, whether the proposed amendments are or are not too late, and whether or not, if they are late, there is a case, in justice and equity, for them being heard nonetheless.
15. The inter partes hearing is to start afresh, as we say, with a clean slate, but it would be useful for us to give directions to enable that to happen and so in a moment I shall embark on a timetable which I ask Mr Draycott and Mr Jones to comment on at the end so that if it proves to be impracticable then we can, perhaps, adjust it; but the timetable would be this:

(1) Firstly, within seven days, Mr Lewis' solicitors are to set out and circulate the exact form of words for which they seek leave.

(2) Secondly, if on seeing that formulation, Corus wish to urge that the amendment or any part of it is out of time, then they must give notice that they will resist on that ground within seven days of receipt of the proposed amendment.

(3) Thirdly, if Mr Lewis wishes to argue that time should be extended for the reception of the amended form of claim (if, contrary to his argument, it is held that it does represent some form of new claim - in other words if he is making, for example, "a just and equitable" or similar argument) - then his full written case on that point is to be sent to the Employment Tribunal and to Corus' solicitors within fourteen days after his receipt of the Notice in (2) above. Any evidence-in-chief on which the Applicant intends to rely would need to be served within that period.

(4) Fourthly, the Respondent is to have fourteen days to answer, again on the basis that any evidence-in-chief on which it is intended to rely would be sent within that period.

(5) Fifthly, the Applicant, Mr Lewis, would then have seven days in which to add any evidence in reply.

(6) Sixthly, one or other or both of the parties jointly are to invite the Employment Tribunal to fix a date for an inter partes procedural hearing before a panel of three, not earlier than forty nine days from today. That, I hope, allows for the earlier timetable to take place.

(7) Lastly, seventhly, either side is to be at liberty to apply to the Employment Tribunal before or after expiry of that forty nine days for further or other directions.

We will allow the appeal in the way we indicated, and give those directions.