At the Tribunal | |
Before
HIS HONOUR JUDGE ANSELL
MRS A GALLICO
MR A HARRIS
(2) LEWIS SILKIN LLP (A FIRM) |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellants | MR BRUCE CARR (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors LLP Employment Dept 5 Chancery Lane Cliffords Inn London EC4A 1BL |
For the Respondent | MR ANDREW SUGARMAN (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors Suite 18 Joseph's Well Hanover Walk Leeds LS3 1AB |
SUMMARY
PRACTICE AND PROCEDURE: Amendment
Tribunal correct in refusing leave to amend response very near to final hearing as Claimant had not altered his case as to liability in witness statements.
HIS HONOUR JUDGE ANSELL
Introduction
Background facts
"They still believed I was unfit to undertake Terminal based work. I produced new evidence from my consultant Mr Sherman, which stated not only was I fit for onshore work, I was also fit for offshore."
"It is my belief the company had unfairly dismissed me and potentially discriminated against me on the grounds of my disability to undertake offshore work by not offering work which I and my medical practitioners believe I am fit to undertake."
The law
"This case states that a Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Relevant circumstances include the nature of the amendment, i.e. whether it is a minor matter or a substantial alteration; and the timing and manner of the application. Where an application for an amendment is made close to a hearing date an explanation as to why it is being made then and not earlier is required."
"1) Whether the statements in the Claimant's witness statements undermine the medical reports.
2) Whether these claims constitute new evidence (particularly with regard to the Claimant not suffering any problems) which had not been known to the Respondent previously.
3) Applying the overriding objective, whether the Respondent should be given leave to amend their application."
"… an explanation as to why it is being made then and not earlier, particularly where the new facts alleged must have been within the knowledge of the applicant at the time the originating application was presented."
The case
"In accordance with the guidance given in Selkent and the overriding objective to deal with a case justly, the Tribunal concluded that it would not be appropriate to give leave to the Respondent at that stage to make this substantial amendment to its Response. Although the Respondent did apply very promptly after receiving the witness statement, the reality is that it was still late in the day. Both sides had been represented by large firms of solicitors with experienced employment departments. Counsel was instructed. The case was apparently ready for hearing. The trial bundle had been prepared and indexed. The witnesses were in attendance and there was no reason why the case could not have proceeded on the set day save for this late application by the Respondent to make a substantial amendment to its grounds of resistance."
"Three separate physicians were all in agreement that he was suffering from a degenerative condition which means it would not improve but could only deteriorate."
Wasted costs
Conclusion