United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GROVES (of Counsel) Instructed by Stephen Fidler & Co Thavies Inn House 3-4 Holborn Circus London EC1 2HB
For the Respondent	MR A KAPADIA (the Respondent in person)


 


JUDGE PETER CLARK:

1. This is an interlocutory appeal by Mr Kapadia, the Respondent to the substantive appeal in this matter and Applicant before the Stratford Employment Tribunal, against an order made by the Registrar and dated 5 March 2002, refusing his application for Chairman's notes of evidence.
2. The background is as follows. Mr Kapadia, whom I shall call the Applicant, was an admitted solicitor employed by the firm of Stephen Fidler & Co, the Respondent. In short, he was summarily dismissed by the Respondent on 29 November 1999. The reason for dismissal given by the Respondent was gross misconduct. That alleged misconduct related to his conduct of a criminal case, that of a client Mr Rahman, and in particular the way in which he, the Applicant, completed Mr Rahman's application for legal assistance.
3. Following his dismissal the Applicant, presented a complaint of unfair dismissal to the Tribunal and the Respondent, in addition to resisting that claim, also raised a counter-claim for breach of contract quantified at some £80,000; well in excess of the Tribunal's jurisdiction. The nature of the counter-claim was that the Respondent had lost the case of Rahman to another firm of solicitors, as a result of the Applicant's conduct of that case, itself in breach of his contract of employment and had thereby lost the profit which would have accrued to the Respondent firm in conducting Mr Rahman's criminal defence.
4. The matter was heard over 10 days by a Tribunal chaired by Mr J N Leonard. By their decision with extended reasons, dated 23 April 2001, the Tribunal upheld the Applicant's complaint of unfair dismissal, subject to a one-third deduction for contributory fault on his part and dismissed the Respondent's counter-claim. They deal with the counter-claim at paragraph 41(iii) of their reasons. In summary, they found that the Respondent had failed to prove any loss, even if a breach of contract by the Applicant was made out.
5. Against the decision to dismiss their counter-claim, the Respondent appealed to this Appeal Tribunal. That appeal first came on for ex parte preliminary hearing before a division presided over by Mr Recorder Underhill QC on 20 September 2001. The appeal was permitted to proceed to a full inter partes hearing on the basis of the Respondent's argument that there was no challenge below to the Respondent's evidence as to the loss sustained as a result of the Applicant's alleged breach of contract, that evidence being found, it was said, in paragraphs 43-44 of the witness statement of Mr Rudwick, the Office Manager, itself not subject to cross examination.
6. I pause to emphasise that in the course of his judgment, at paragraph 5, the learned Recorder observed that, at that ex parte hearing, the Appeal Tribunal saw no need to make a direction for Chairman's notes of evidence unless there was to be a significant dispute about how the loss issue was dealt with below, adding that if a significant dispute arose on this point, an application for Chairman's notes may be made.
7. In due course the Applicant did make application for Chairman's notes by letter dated 30 January 2002. By that time the Applicant had filed his answer, to which the Respondent filed a reply, respectively contained at pages 6.14-15 and 6.17-18 in the bundle before me.
8. It is clear to me that, on the face of those pleadings, factual questions arise as to how the Applicant's case was put below which are highly material to the substantive issues on which this appeal has been allowed to proceed. That is recognised by both parties. Each seeks Chairman's notes to resolve those factual issues.
9. I turn then to the Registrar's refusal to order the notes. At first it is said that the fact that the parties agree on the need for Chairman's notes is of no relevance. I accept that such an agreement is not, of itself, determinative of the application, but it is a relevant consideration where both parties consider it necessary, in order to argue their respective cases, in the substantive appeal.
10. Secondly it is said that Chairman's notes do not exist simply to clarify matters above and beyond the parties' own notes. I am not sure that I entirely follow the logic of that observation. Certainly Chairman's notes will not be ordered to check the reasoning or findings in the Tribunal decision (Practice Direction 7(7)), but equally it is the Chairman's notes which represent the formal record of the proceedings and not the parties' notes, unless there is a dispute over the accuracy of the Chairman's notes. On the face of the pleadings in the appeal, to which I have referred, there is a difference of recollection between the parties as to how the case was put below; that issue, in my judgment, can only be satisfactorily resolved by recourse to the relevant Chairman's notes.
11. Finally, the parties are referred, by the Registrar, to paragraph 6 & 7 of the Employment Appeal Tribunal Practice Direction. It is right to say that paragraph 7(3) requires that any application for Chairman's notes must identify the issues in the Notice of Appeal or Respondent's answer to which the notes of evidence are relevant and the names of the witnesses whose evidence is considered relevant and the parts of their evidence which are considered relevant.
12. Reverting to the Applicant's letter of application dated 30 January 2002, that direction has not been strictly complied with. However, it seems to me that the answer and the reply sufficiently identify the notes which are required. The relevant witness is Mr Rudwick; the parts of his evidence are such parts in the cross-examination relating to the loss contended for in paragraphs 43-44 of his witness statement, and in any questions on that topic from the chairman. Finally, the Chairman may be asked to provide relevant extracts from his note, if any, of the Applicant's counsel, Mr Leo Rahman's closing submissions relating to the issue of loss. For completeness, the Chairman's notes of counsel for the Respondent's closing address, insofar as he dealt with the issue of loss in the counter-claim, would also assist the Appeal Tribunal hearing the substantive appeal.
13. It follows that I find myself taking a different view from that of the Registrar. I shall allow this appeal and direct that the Chairman be asked to provide his notes of evidence and closing submissions, more particularly identified above. For this purpose the Chairman shall be sent a copy of this judgment together with the Notice of Appeal, judgment of Mr Recorder Underhill QC, the Respondent's answer and the Appellant's reply.