United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAVID BEAN QC (of Counsel) Instructed by: Messrs BBH Solicitors Eastham Hall Eastham Village Wirral Cheshire CH62 OAF
For the Respondent	MR BRIAN LANSTAFF QC AND MR DAMIAN BROWN (of Counsel) Messrs Raleys Solicitors Regent House Regent Street Barnsley S Yorks S70 2EG


 


JUDGE PETER CLARK:

1. By an Originating Application presented to the Sheffield Employment Tribunal on
   13 February 2002 the Applicant Mr Murdoch, then represented by Solicitors Irwin Mitchell, complained of unfair dismissal, breach of contract and unauthorised deductions from wages and holiday pay on the part of the Respondent, the National Union of Mineworkers, by whom he was employed as an Area Official from 25 October 1985 until, he said, 21 November 2001.
2. By its Notice of Appearance the Respondent Union took issue both as to the substance of the claims and as to the Tribunal's jurisdiction to hear them its case being that the employment ended on 18 September 2001 so that the claims were out of time.
3. By way of background the Applicant was expelled from the Respondent by the Union's National Disciplinary Committee on 18 September 2001. His appeal against that decision was dismissed by the National Appeals Committee on 21 November. If the effective date of termination of employment was the former date then the Originating Application was lodged outside the primary limitation period, if the latter date then it was lodged in time.
4. Originally the limitation point was listed for hearing as a Preliminary issue on 26 July 2002. That date was vacated and it was agreed between Solicitors acting for the parties that the case be re-listed for a two day hearing to deal both with the limitation issue and the substantive merits of the case.
5. In their letter of application to the Tribunal dated 19 July 2002 the Respondent's Solicitors said this

"The party's Solicitors have now had an opportunity of considering relevant issues prior to the preliminary hearing and are agreed that there would be considerable cost savings to the Applicant and to the Respondent if this point the limitation point could be dealt with at the outset of the substantive hearing rather than as a discreet matter".

6. On 22 July a Chairman Mr. Little directed that the hearing fixed for 26 July be postponed and the case be re-listed for a two day merits hearing to include preliminary issues. The matter finally came on for hearing on 25 and 26 November 2002. It is the Applicant's case before me that having indicated that he wished to be represented by leading Counsel Mr. Antony White QC who had represented him on an earlier occasion he was then informed by his Solicitor, Mr Meldrum of Irwin Mitchell, on Sunday 24 November that Mr White would not be attending the hearing and that he would be represented by Mr Meldrum himself the following day.
7. On 25 November the Applicant attended with Mr Meldrum. The Respondent had brought witnesses going to both the limitation and substantive issues in the case. The Union was represented by Mr Brian Langstaff QC together with Junior Counsel Mr Damian Brown. On that occasion the Respondent opened the proceedings and called Mr Arthur Scargill the Union President to give evidence. He was, during the course of the first day, cross examined by Mr Meldrum but his evidence was not completed on that day. On the morning of the second day Mr Meldrum applied for an adjournment. It seems that the Applicant, having considered matters overnight, had decided to withdraw Mr Meldrum's instructions. I take that from paragraph 3 of the Tribunal's summary reasons for the directions ordered that day dated
   19 December 2002. Mr Langstaff opposed the application for an adjournment. In the event the Tribunal chaired by Mrs Branchflower made the following orders among others:

(1) The hearing be adjourned until 30 June and 1 July 2003 so that the Applicant could obtain fresh representation, they having first allowed Mr. Scargill to complete his evidence.

(2) That an application for costs thrown away made by Mr Langstaff be considered at the adjourned (part-heard) hearing.

(3) That the issue of limitation be dealt with at the same time as the merits of the case at the resumed hearing.

8. The Applicant then instructed new Solicitors, BBH, who applied for a review of the relevant directions order. The Respondent opposed that application and by letter dated
   14 January 2003 a Chairman refused that application. It is common ground between Counsel before me that the relevant directions order was not a decision capable of review under the Employment Tribunal Rules of Procedure 2001. The earlier directions were affirmed. Against the relevant directions this interlocutary appeal is brought by the Applicant and today he is represented by Mr David Bean QC. The challenge is first to the Tribunal's direction that the matter should be re-listed as a part heard matter; Mr Bean seeks an Order for the case to be re-heard by a fresh Tribunal and alternatively that the case continue before the present Tribunal in what he describes as the least unjust way, that is, with a direction from me that the time bar point should be taken first and if the Applicant succeeds then the matter should proceed for consideration of the substantive issues.
9. Essential to Mr Bean's submission is that Mr Scargill should be recalled to give evidence either if there is a complete re-hearing or indeed in the second way in which he puts the case so that whoever represents the Applicant on the next occasion may have an opportunity to cross examine that witness.
10. Appeals to the Employment Tribunal against Interlocutary Orders are no different from Appeals against substantive decisions. My jurisdiction is limited to correcting errors of law by the Tribunal below. I cannot consider the matter de novo. In these circumstances I look for errors of law on the part of the Tribunal and the Orders which were made. Mr Bean puts the matter in three ways. First he submits the Tribunal should not have continued with the hearing on the second day, 26 November at all or it should not have released the witness Mr Scargill or thirdly it should not have allowed the Merits Hearing to be inter-twined with the limitation issue bearing in mind that originally the limitation point was to be dealt with as a preliminary issue and that subsequently although agreement was reached between the parties for both the substantive issues and limitation issues to be heard together nevertheless that was clearly on the basis that the limitation point would be taken first.
11. Central to his submissions is the proposition that there was clearly a conflict of interest affecting the Applicant's then Solicitor Mr Meldrum. It is said that where he was the Solicitor acting and a question arose as to whether the Originating Application was lodged in time it was wrong for him to act at a hearing where not only the limitation issue but also substantive issues were to be ventilated should he succeed on that part of the case
12. I have considered that aspect with some care bearing in mind the submission that there was a risk of unfairness so far as the Applicant was concerned in the matter going ahead at all with Mr Meldrum representing him in these circumstances but I reject the suggestion that there was any error in the approach of the Tribunal in permitting the case to proceed with Mr Meldrum representing the Applicant. I reject Mr Bean's submission that the Chairman ought to have enquired of the Applicant as to whether there was a conflict of interest and whether he was happy for Mr Meldrum to continue to represent him. Certainly as in balancing the interests of the parties to this litigation it would be wrong in my opinion for the Respondent to be disadvantaged due to conflict between the Applicant and his legal adviser and having been taken by both Counsel to the passage from the speech of Lord Hobhouse of Woodborough in Arthur J S Hall & Co v Symons [2002] 1 AC 615 page 744 B-E I am satisfied that it would be wrong to assist the Applicant as Mr Bean asked me to do in circumstances where it would cause injustice to the Respondent and injustice there would be if I were to follow that course for the reasons advanced by Mr Langstaff.
13. First, that if Mr Scargill is to be recalled or if the case is to be heard de novo then that will involve further time and subsequent expense which, although there is an outstanding cost application by the Respondent, will not necessarily be recovered by the Respondent and, secondly, I accept the point made that the Witness having already been cross examined and allegations as to his integrity having been put to him, should not have to face a similar line of questioning again.
14. The third point that is taken is that the public interest requires finality of litigation. Of course this litigation is nowhere near at an end in the sense of reaching a conclusion on the issues raised. However it would be wrong in my view to allow the Appeal process to be used to allow a litigant who is unhappy with the first day of hearing in his case to then discharge his then representative with a view to engaging another and then re-running what had happened on the first day. The short answer to this Appeal in my judgment is that there is no error of law in the Orders made by the Tribunal on 26 November last and on that basis alone I have no jurisdiction, even were I inclined to do so, to arrive at some different procedural order. In these circumstances I shall dismiss this Appeal.

Discussion

Costs

15. I am satisfied that this was an unnecessary Appeal. I think it was misconceived. I think it had no reasonable prospect of success and therefore Rule 341 applies. I think it is a case in which an Order for Costs ought to be made. However having seen the Respondent's Statement of Costs I think it is excessive for the nature of this Appeal, particularly having leading and junior Counsel here today. Doing the best I can on the figures with which I have been provided I shall make an Order now of costs to be paid by the Applicant in the sum of £4,500 plus VAT.