Title: Appeal No.
Author: JEMERSON
Last saved by: Joe
Company: Employment Tribunal Service

Appeal No. EAT/765/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL
 
	At the Tribunal
	On 20 September 2001

Before
MR RECORDER UNDERHILL QC
MR P A L PARKER CBE
MR H SINGH

STEPHEN FIDLER & CO	APPELLANT

MR A KAPADIA	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant

MR M GROVES
(of Counsel)
Instructed by:
Stephen Fidler & Co
Thavies Inn House
3-4 Holborn Circus
London EC1 2HB

MR RECORDER UNDERHILL QC

1	We will allow this appeal to proceed to a full hearing.  It concerns only a single, though not insubstantial, sub-paragraph of the Tribunal’s very full and careful Reasons - see paragraph 41(iii).  There were, of course, many other issues in the case.  

2	Mr Groves, who has appeared as he did below for the Appellant (the Respondent below) tells us that, subject to some qualifications which we will briefly mention below, the only evidence specifically directed to the quantum of the loss claimed by the Respondent consisted of paragraphs 43 - 44 of the witness statement of Mr Rudwick; that those paragraphs were not supplemented in oral evidence in chief, nor challenged in cross-examination; that, in contrast to the Chairman’s practice as regards other issues of difficulty, no submissions were invited in relation to the question of the quantum of the counterclaim, with the result that in his closing submissions, Mr Groves in substance did no more than draw attention to the claim, which had not been challenged, and move on; [and that the Respondent’s Counsel did not address any submissions specifically to the question of the quantum of the counterclaim in relation to the loss on the Rahman case].  We mentioned that there were some qualifications.  These are three:
  
1)  Mr Groves has told us that there was a limited amount of oral evidence from Mr Rudwick on the question of the uplift that might have been available in the Rahman case.

2)  That he elicited some evidence from Mr Kapadia and other witnesses designed to bring out the complexity of the Rahman case.

3)  That there was prepared a Scott schedule which included the items in relation to the quantum claim, but contained no other substantive material from either party.  

3	On that basis, it seems to us arguable that the Tribunal was not entitled to dismiss the claim in the way that it did, and in particular, not to do so on the basis that the Appellant had not proved the costs saved aside of the loss of profit equation.  It may also be arguable that the reasons on this issue are insufficiently clearly explained.  

4	The grounds of appeal broadly encapsulate those points, and insofar as they arguably go further we are content to allow the points raised to be dealt with at the full hearing, subject only to this: that Mr Groves accepted in argument that there was no reason in principle why the Tribunal should not decide the claim on the basis that the Appellant had not proved any loss, without first considering the question of breach, provided always that that conclusion on loss, was one which was open to it.  That means that the first half of ground 5(i) cannot be pursued.  

5	We see no need to direct the production of any of the Chairman’s Notes unless, which we would not expect to be the case, there is a significant dispute about how the point was dealt with in the Tribunal, and what evidence was called.  We direct that within twenty one days the Respondent’s solicitors write to the Tribunal and the Appellant’s solicitors, indicating if there are any points which they wish to make by way of addition or qualification to Mr Groves’ account, as summarised above, of what material and submissions were before the Tribunal on this issue. In the event, which, as we say, we hope and expect will not be the case, that there appears to be a significant dispute on this, it may be necessary for an application for Chairman’s Notes to be made.  

6	It seems to us that there may be an issue of principle as to the burden of proof in these matters, and the case for that reason should be listed as Category B.  Time estimate three hours. Standard direction for exchange of Skeletons fourteen days before the hearing.

© Copyright 2001

EAT/765/01

EAT/765/01
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