"However, if an Industrial Tribunal wrongly assumes jurisdiction and I emphasise 'wrongly assumes' jurisdiction, then the point can be taken but here the Industrial Tribunal has, on the appellant's case, refused jurisdiction. There is a conflict between the decision of Talbot J in House v Emerson Electric Industrial Controls[1980] ICR 795 where Talbot J took the view that in all cases in relation to jurisdiction the court should permit such matters to come before it but Knox J in Russell v Elmdon Freight Terminal Ltd[1989] ICR 629 at 632 said that it is a question in each case whether justice requires the new point to be taken and that the blanket indication set out in the House case that any point relating to jurisdiction can be raised for the first time on appeal, is too wide."
"There were two possible ways of arguing the case on behalf of the employee, one of which was allowed to be advanced by the appeal tribunal although it had not been advanced below. Here we have two possible ways in which the case could have been mounted by the employee when the matter came before the industrial tribunal. We have come to the conclusion that the statement to be found in House v Emerson Electric Industrial Controls is not to be construed as meaning that any and every point on jurisdiction, whether or not it may involve the adducing of further evidence, can be taken at any stage in the proceedings. For that in our view would be much too wide a principle. In each case in our view, the court has to decide on balance whether justice requires that the new point should be allowed to be taken."
"It does not however follow from this that all jurisdictional points must be allowed at any stage even if they involve a further hearing to establish further facts. In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken. If it appears on existing evidence that the decision appealed from is a nullity that will be a consideration of overwhelming strength. Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straightforward."
"It is apparent from these cases that the fundamental test to be applied is: What is in the interests of justice in the particular circumstances of the case? Accordingly, the present Tribunal does have a discretion. It is not one which should be readily exercised in favour of an appellant raising a new point, but it remains a discretion to consider the application in the light of all the relevant circumstances.
"Our conclusion is... that there is nothing in the language of the statute to exclude the consideration of a new point of law but that it would in almost every conceivable case, as the National Industrial Relations Court said in G.K.N. (Cwmbran) Ltd v Lloyd [1972] I.C.R. 214, be unjust to do so. ... It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate."
"It is to be emphasised that, in the absence of special circumstances, it would not satisfy that rule merely to show that evidence relevant to the new point was before the tribunal, or findings relevant to it made by the tribunal: it would be necessary to show that, if the matter had been properly raised before the tribunal, the evidence before the tribunal by way of evidence-in-chief or cross-examination of witnesses called would not have been significantly different and that no other additional witnesses could usefully have been called."
"We would wholly indorse what was said by Arnold J and what would seem to be setting out the settled and accepted practice in this appeal tribunal, and we would not seek to depart from what he said - except, in our view, that where the matter raises the question of jurisdiction, (that is to say, whether the industrial tribunal claimed jurisdiction, or refused to accept jurisdiction) it is open, even if that matter was not raised before the industrial tribunal, to argue it before the appeal tribunal. It would seem to us quite contrary to any principles of justice not so to hold."
"We therefore accept that the normal retiring age is a matter which goes to jurisdiction. However the position facing the employers when the preliminary point as to jurisdiction came to be heard by the industrial tribunal was that it had all the relevant information about its own employees, their terms of employment and the practice of the employers concerning retirement. There were no doubt in principle several, or at least, two ways in which they might persuade the industrial tribunal that the employee was outside the pale erected by section 64(1)(b). They chose to try to persuade the industrial tribunal that this was because the normal retiring age was 64. This was no mere oversight by a litigant in person but an assertion made in particulars given by a litigant in response to a formal request who had the benefit of very experienced and skilled solicitors and counsel. In fact the attempt thus to persuade the industrial tribunal was successful but for reasons given earlier we are of the view that it should not have succeeded. We are unpersuaded that it would be just for the employers to have a second bite at the cherry of trying to persuade the industrial tribunal that the employee is disqualified by section 64(1)(b) of the Act by advancing evidence which was always available but was not used for what no doubt at the time seemed to be excellent reasons. We are far from satisfied that it is quite plain that the industrial tribunal has no jurisdiction. On the evidence before it we consider the opposite to have been established. We do not consider that it would be right at this stage to allow the employers to pursue the possibility (and it is no more than that) of establishing the contrary."
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