JAMES BEEDELL v WEST FERRY PRINTERS LIMITED [2001] EWCA Civ 400

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
[2001] EWCA Civ 400Case No A1/2000/2676/AVenue Royal Courts of Justice, Strand, London WC2, Thursday 15th March, 2001
Between
JAMES BEEDELLAppellantWEST FERRY PRINTERS LIMITEDRespondents
Before
Lord Justice AldousLord Justice MayLord Justice MummeryMR G MILLAR QC (Instructed by Messrs Russell Jones & Walker, London WC1X 8DH) appeared on behalf of the AppellantMR J SWIFT (Instructed by Messrs Simmons & Simmons, London EC2Y 9SS) appeared on behalf of the Respondent

LORD JUSTICE ALDOUS:

[1]I will ask Lord Justice Mummery to give the first judgment.

LORD JUSTICE MUMMERY: There are before the court, first, an application to set aside permission to appeal to this court granted by Lord Justice May on 15th September 2000; and, secondly, the appeal brought with that permission, being an appeal by Mr Beedell against the decision of the Employment Appeal Tribunal on 7th July 2000 dismissing the appeal against the decision of the Employment Tribunal. The Employment Tribunal on 14th December 1999 dismissed Mr Beedell's complaints of unfair dismissal and dismissal for trade union activities. The finding of the Employment Tribunal in his favour on an issue of wrongful dismissal was reversed by the Employment Appeal Tribunal, allowing a cross-appeal by his former employers, West Ferry Printers Ltd.

[3]The background to the claims can be very shortly stated. West Ferry Printers carry on the business of providing printing services. Mr Beedell was an employee. He was dismissed from their employment on 29th September 1998 with effect from 5th October following a violent incident.[4]The question for decision today is in essence a procedural one following on the decision of this court in Foley on 31st July 2000; i.e. after the decision of the Employment Appeal Tribunal, but before the application for permission to appeal against the decision of the Employment Appeal Tribunal was considered on paper by Lord Justice May.[5]In deciding Mr Beedell's claim the Employment Tribunal explained in their extended reasons of 14th December 1999 that, applying the conventional range of reasonable responses test West Ferry Printers had acted reasonably in accordance with equity and the substantial merits of the case in dismissing Mr Beedell. As explained in paragraph 51 of the extended reasons:
"In so doing, we also concluded (to adopt the words of Dillon LJ in Gilham & Others v Kent County Council (No 2) [1985] ICR 233) `What the employer did is not what we ourselves would have done, but we cannot say that it was unreasonable.'"
[6]The Tribunal went on say at paragraph 52 that:
"... this is one of the `marginal cases' referred to by Morison J in Haddon v van den Bergh Foods Ltd [1999] IRLR 672 `where a decision not to dismiss would be reasonable and a decision to dismiss would also be reasonable'."
[7]What happened in Foley was that a challenge was mounted to the conventional range of reasonable responses approach. The history of the controversy is set out in the judgment given on 31st July 2000 in the cases of Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2000] ICR 1283 . The effect of that unanimous decision of the Court of Appeal was that, as far as the Court of Appeal and all lower courts and tribunals are concerned, the range of reasonable responses test is the subject of binding authority. The application of a different test by the Employment Appeal Tribunal in the case of Haddon v van den Bergh Foods Ltd [1999] ICR 1150 was disapproved.[8]The decision in Foley was not drawn to the attention of Lord Justice May when the application for permission was made. He granted permission to appeal unaware of the decision. That led Mr Swift, who appears for West Ferry Printers Ltd, to launch an application to set aside the grant of permission to appeal. Such an application can be made under the Civil Procedure Rules 1998 Part 52.9, which provides:
"(1) The appeal court may- (a) ... (b) set aside permission to appeal in whole or in part; (c) ... (2) The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so."
[9]Mr Swift submits that there is a compelling reason for setting aside the permission to appeal. Whichever test is applied, the case of Haddon or the case of Foley , the result will be the same. The appeal will fail. So, he says, as the appeal cannot possibly succeed, it should never have been allowed to be brought. We should set aside the permission.[10]The effect of the court adopting that approach is that Mr Beedell would not be entitled to make any application either to this court or to the House of Lords for permission to appeal. The effect of section 54(4) of the Access to Justice Act 1998 is that it is not possible to appeal against a refusal of permission to appeal.[11]Mr Swift submits that that should be so here, because there is a possible prejudice to his clients, if what his clients regard as a hopeless case is taken either with the permission of this court or with the permission of the House of Lords to the House of Lords. His clients would be exposed to a risk as to costs in arguing a case which has wider implications, perhaps, than are the concern of his clients in their particular case. He contends that whatever is decided by the House of Lords, whether Foley is right or whether Haddon is right, the result will be the same. So why should his clients be exposed to further litigation and further expense?[12]A direction was given by me for the appeal to come on at the same time as this application. In dealing with the discretion under CPR Part 52.9 the court must bear in mind the overriding objective in CPR Part 1.1 which provides:
"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. 1.2. The court must seek to give effect to the overriding objective when it- (a) exercises any power given to it by the Rules."
[13]So the critical question for the court on Mr Swift's application is whether this court would be dealing with this appeal justly if it exercised its power to set aside the permission to appeal, rather than letting the permission to appeal stand and dismissing the appeal, which Mr Millar QC, on behalf of Mr Beedell, accepts is the inevitable consequence of this appeal being heard.[14]I have no doubt that the correct approach to the exercise of our discretion - bearing in mind the overriding objective - is to refuse to set aside the permission to appeal. If we followed the course which Mr Swift invites us to follow, the consequence would be, in effect, that this court would be making an unappealable decision in an area recognised by the Court of Appeal in its judgments in Foley to be the subject of considerable controversy in unfair dismissal cases.[15]That would not be a just result. If we take the alternative course which Mr Millar accepts is inevitable of dismissing this appeal, we will be able to entertain an application for permission to appeal; and if we refuse that, it will be open to Mr Beedell to petition the appellate committee for permission to appeal. It will be a matter of discretion for the court which hears the application for permission to appeal to decide, if it grants permission, what conditions, if any, should be attached to that permission. That is not a matter which, in my view, should concern us at this stage. We are deciding simply whether to set aside the permission, or to refuse to set aside the permission and dismiss the appeal in consequence of the concession which has been made.[16]I would refuse the application to set aside the permission. On Mr Millar's concession, I would dismiss this appeal.

LORD JUSTICE MAY: I agree.

LORD JUSTICE ALDOUS: I also agree.

ORDER

The application to set aside the grant of permission to appeal refused; appeal dismissed; the respondent to have the costs of the application and appeal up to and including the 22nd November 2000; thereafter the costs to be paid by the respondent; permission to appeal to the House of Lords refused. (Order not part of approved judgment)

Cited in 9 later judgments