Mrs D W Mcguire and others v PH Opco Ltd (In Creditors Voluntary Liquidation) and The Secretary of State for Business and Trade: 1601127/2023 and others
JUDGMENT
The judgment of the Employment Judge sitting alone is that:[1]The complaint that the Respondent failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is not well founded and is dismissed.REASONS
[1]There is no reasonable prospect of the original decision being varied or revoked. The Claimants are attempting to relitigate matters determined by the Tribunal on the basis of evidence that they could and should have obtained for the final hearing.[2]Rule 72 requires that the hearing judge decides whether there is any reasonable prospect of the original decision being varied or revoked. The grounds of the Claimants’ reconsideration application are that their representatives failed to provide evidence that there were more than 20 employees at the establishment at which they worked and from where they were made redundant. They have provided confirmation from the administrators that 23 employees were at that location. This evidence was not obtained until after the final hearing.[3]The Claimants’ representative accept that the evidence was not provided at the final hearing, and in the application said “We recognize and acknowledge that there was no good reason for this evidence not being sought before the hearing or included in the witness statements. The writer accepts that she failed to present this information in the bundle or pleadings and wishes to express her deep regret and apology to the tribunal and particularly to Employment Judge C Sharp for this failure.” The representative pointed out that it is the Claimants who will suffer and the Respondent did not take part in the hearing so cannot suffer a detriment.[4]I appreciate the embarrassment that the Claimants’ representative must feel and I thank her for her honest and full acceptance of fault. It is not easy to make such an admission as a professional and it is wholly in accordance with her professional responsibility to make the admission and seek to put matters right. Case No: 1601127/23, 1601128/23 & 1601129/23[5]However, the negligence of the Claimants’ representative is not a lawful basis to permit a reconsideration. There must be finality in litigation. The Claimants’ redress is against the firm for their loss (or loss of an opportunity). As the Claimants’ representative accepted in the application, the judgment of the Tribunal was correct based on the evidence before it. Further, the final hearing was conducted in such a way as to allow the Claimants to address the issue of the number of employees in a fair way. Even though they were legally represented by Counsel (who was not at fault), the Judge drew this issue to their attention from the outset and asked how the Claimants intended to address the gap in the evidence. Counsel was given a break to take instructions, and on her return explained that she could not contact her instructing solicitors. The Judge offered as a solution permission to orally examine in chief the Claimants; this was accepted by Counsel as a pragmatic solution. Under oral examination in chief, the Claimants said that there were less than 20 employees. The oral evidence was honest, but appears to have been mistakenly given (there is no criticism of the Claimants).[6]I considered the Ladd v Marshall [1954] EWCA Civ 1 requirements, later summarised by Lord Denning as “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” I note that the Claimants do not address this key binding decision on the Tribunal in the reconsideration application.[7]I am satisfied that the Claimants were given every possible opportunity to adduce the required evidence. It should have been pleaded, it should have been in the bundle, and it should have been addressed in the witness statements. It could have been obtained with reasonable diligence, as shown by the email from the Claimant’s representative sent after the reconsideration application; it took two days to get the evidence. The inability of Counsel to be able to reach instructing solicitors and the honest if mistaken evidence of the Claimants does not change the fact that the evidence adduced with the reconsideration application could, and should, have been available at the final hearing. I would have accepted such evidence if given by the Claimants orally. The reconsideration application fails on the basis that the first limb of Ladd v Marshall has not been satisfied. The principle of the finality of litigation means that cases cannot be reopened simply because a representative has made a serious error.[8]I regret that the Claimants understandably are disappointed by my Judgment. However, I do not consider that there is any reasonable prospect of a variation or revocation of it.