United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T B NICHOLLS THE APPELLANT IN PERSON
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE J McMULLEN QC:

1 In a Notice of Appeal dated 3 March 2003, Mr Nicholls, the Applicant in Employment Tribunal proceedings, seeks further documentation to be adduced at the part-heard case, presently before a Southampton Tribunal, Chairman Mr Simpson. I need not rehearse the history of this matter, since it is given comprehensively in the judgment of Mr Justice Nelson at on 9 July 2002.

2 At the opening of the hearing before the Employment Tribunal documents, ordered by Mr Justice Nelson's EAT, were finally disclosed. The Applicant has asked for essentially four matters before me:

a. The right to include a number of calculations at page 288 of the bundle.

b. The right to be able to refer to Eberspacher Customer Order No. 2329, dated 28 November 2001, page 284 in the bundle, and to link it to the Order which would be associated with that from the Respondent to Dial Art, and

c. To issue a Witness Order to require the attendance of I.C. Lindsey of Grant & Co.

d. To be able to raise issues, not currently in his exchanged Witness Statement.

3 As to the calculations, in my judgment he is entitled to raise these matters, as indeed the Chairman points out, since they are not a document but are his own submissions. The present state of play is that both Mr Lewington and Mr Taylor are part-heard in their evidence and are being subjected to cross-examination by the Applicant. He is entitled to put his calculations to the Directors, and to seek their comments, and he is also entitled to make submissions upon those calculations to assist the Tribunal in coming to a conclusion.

4 As to the Eberspacher matter, I will order that the Dial Art Order associated with that, if any, be disclosed by the Respondent by 13 March 2003 since it is relevant.

5 Thirdly, the Applicant seeks to call Mr Lindsey. The Chairman has pointed out how dangerous it is for the Applicant to be given a Witness Order in respect of Mr Lindsey, who is the Respondent's Accountant. He wrote a letter on 21 May 2002. It is clear to me that the Applicant does not fully understand the impact of his calling a witness, who will essentially give evidence in accordance with the Directors. Nevertheless, I perceive an unfairness in this position. The Applicant may not properly understand the forensic nature of the difficulty facing him, but a letter has been produced (page 180 of the bundle) from Mr Lindsey which the Applicant contends is a fabrication, and based upon material supplied by the Directors. Of course, the Applicant can put his criticisms to the Directors themselves, but it seems to me that, since this document has been produced, not by the person who wrote the letter, and the Applicant disagrees with the contents, he ought in fairness to have the opportunity of challenging it. That means either that the Respondent must be required to produce this witness, alternatively that the Tribunal itself decide to call him.

6 The Tribunal has already of its own motion issued a Witness Order for the third witness in this case, Ms Juliet Pearce, to attend and give evidence in accordance with the letter which she has written. When she is called the Applicant will be able to cross-examine her. I will allow the appeal which refused the Witness Order to be issued against Mr Lindsey, and I will use the powers I have of substitution, in Section 35 of the Employment Tribunals Act, to require the Tribunal of its own motion to issue a Witness Order for Mr Lindsey to attend upon the Tribunal and to give evidence.

7 I thus allow the appeal in part, pursuant to Section 28(4) of the Employment Tribunals Act 1996.

8 As to the Applicant's claim that he should be allowed to amend his Witness Statement, I agree with the approach taken by the Employment Tribunal Chairman and see no error of law in it. The Applicant will be able to put his case to the two Directors. He will now be able to put whatever case he has in respect of Mr Lindsey, based upon all of the material will have been made available to him by the resumption of the hearing. He will himself be able to deal with those new matters which have occurred as a result of the late disclosure of the documentation and of the evidence given by the witnesses for the Respondent. He will not be disadvantaged. He need not seek the permission of the Tribunal to deal with that, since as the Tribunal has said, it is open to him to deal with it in the course of his evidence.

9 It is sometimes the case that new points are taken which were not available in the original Witness Statement. It is, of course, a matter for the discretion of the Tribunal in its case management duties to consider whether that material may properly be adduced. In my judgment the Tribunal has before it the relevance of these matters and will allow the Applicant, within the bounds of its own case management duties, to add orally points to his evidence which have occurred during the cross-examination of the Respondent's witnesses and I therefore dismiss the Applicant's appeal based on that ground.