DILIP MALKAN v (1) THE WEST MIDLANDS REGIONAL HEALTH AUTHORITY [2002] EWCA Civ 1230

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
[2002] EWCA Civ 1230Case No Case No. A1/2001/1126Venue Royal Courts of Justice, Strand, London WC2A 2LL, Tuesday 23rd July 2002
Between
DILIP MALKANApplicant(1) THE WEST MIDLANDS REGIONAL HEALTH AUTHORITY(2) SECRETARY OF STATE FOR THE DEPARTMENT OF HEALTHRespondents
Before
Lord Justice MummeryMR DAVID BERKLEY QC and MR GHAZAN MAHMOOD (instructed by Messrs Dowse & Co, London E8 3DF)appeared on behalf of the Applicant.MISS JANE COLLIER (instructed by the solicitor of the Department of Health, London EC2A 2LS)appeared on behalf of the Respondents.Date 23 July 2002

LORD JUSTICE MUMMERY:

This

[1]is the adjourned hearing of an application for permission to appeal, coupled with an application for permission to adduce fresh evidence on the appeal. The matter was first before this court on 8th February 2002, when in the judgment I gave on the application I set out the background to Mr Malkan's proceedings in the Employment Tribunal and the Employment Appeal Tribunal. For the reasons which I set out and will not repeat, I concluded that the most appropriate course was to adjourn the application in order to give Mr Malkan an opportunity to make an application to the Employment Tribunal for a review of its original decision, relying on the fresh evidence which he was seeking to put before this court on an appeal.[2]I said in the judgment that there would be difficulties in the way of such an application in view of the time which had passed and of the application being out of time. The chairman of the Employment Tribunal would have to be persuaded that it was an appropriate case to grant an extension of time before considering the prospects of the application for a new hearing succeeding. I therefore made an order in these terms:
"[That the] applications be adjourned generally pending the determination of an application by the Appellant for review to the Shrewsbury Employment Tribunal [that] there be liberty to restore on notice [and that] the Appellant make the application for review [to] the Shrewsbury Employment Tribunal ... within 28 days, that is by 8th March..."
[3]I also directed that, if Mr Malkan failed to file his review within that time, he must make an application for an extension of time supported by evidence of reasons for failure to act within the time set.[4]The application was made and was supported by a detailed and, if I may say so, very well set-out document dated 7th March 2002. The application requested an extension of time to present the review application and it was submitted, for the reasons set out in the detailed 16-page document, that it would be highly prejudicial to Mr Malkan if the application were refused, whereas there would be no real prejudice to the respondent, given that the new evidence on which he relied had at all times been in their custody or control rather than in his control. The application for a review the original Shrewsbury Employment Tribunal decision of 30th January 1996, in which Mr Malkan's claims had failed, proceeded.[5]Submissions were made by the respondent Secretary of State for the Department of Health. The decision was given by the chairman on 15th May 2002. The chairman concluded that he was not prepared to extend the time for the application for review, that he did not consider that the interests of justice required such a review, and that, in his opinion, it had no reasonable prospect of success.[6]In the reasons given for his decision he referred to the review powers of the tribunal. He pointed out the circumstances in which the original decision had been made; it was a 68-page decision after a full hearing between 23rd October and 8th November 1995, followed by five days of deliberation by the tribunal, culminating in the decision, which was sent to the parties on 30th January 1996. He recorded that the tribunal's file and papers had been destroyed and that the chairman's notes of the hearing no long existed. He then summarised the judgment which I had given in granting the adjournment, stating that he considered the terms of my judgment. He also considered half a dozen authorities relevant to his deliberations.[7]He summarised the rival submissions which had been made and he concluded in favour of the applicant, that it had been impossible for him to submit his application within 14 days from the date when the decision was sent to him; and therefore, but for other factors, he would have granted an extension of time for the application. But he was not prepared to do so because of what he conceived to be the difficulties in conducting such a review at that distance of time from the original hearing.

(c) of his reasons:

"Whilst I appreciate that I should not automatically form the view that if delays are down to the legal representatives, that I should automatically form a judgment that it is not just and equitable to extend time, nonetheless, it is a matter that it is right for me to take into consideration. It is clear from the submissions made on behalf of the applicant that by 5 April 2000 he had become fully aware of the true level of the alleged respondent's previous inconsistencies and the collective value of the new evidence. It would be reasonable to assume, therefore, that he could and should have made an Application for Review as soon as possible thereafter. Any delays in such an application cause considerable problems and such a considerable delay in my view is inexcusable. Whilst, on the papers before me, the applicant may consider that the delay is the fault of his legal advisers, nonetheless, he must retain the responsibility for ensuring that his legal matters are dealt with with reasonable speed and efficiency."
[8]He added at (d):
"I would be extremely concerned at the possibility of re-opening this case after such a length of time. I do not have before me my notes of the evidence. I have very little recollection of the case as a whole. I suspect that my lay members may well be in the same position. I do recall that there were a number of medical consultants who gave evidence on behalf of the respondent at the original hearing. I do not know whether they would now have a great deal of recollection of this matter if it were to be re-opened, whether they are now retired or, indeed, still alive. It is clear to me from reading the Tribunal's decision that although there were a great number of documents, there was also a considerable amount of verbal testimony of the witnesses' recollections and opinions, not necessarily aided by documents."
[9]He concluded in paragraph (e) that he was not at all sure that in those circumstances there could be a fair trial in the case; the recollection of events would be almost impossible; it would be extremely difficult for the applicant himself to recall events. He appreciated the position of Mr Malkan and his feelings about the matter, but nonetheless would feel very unsure about relying on recollections of events so long ago. The chairman said that he was being asked to do the impossible. He refused the application.[10]I have been told by Mr Berkley QC (who appears for Mr Malkan) that as yet there has been no attempt to appeal against that decision to the Employment Appeal Tribunal. There is of course a right of appeal but, as I pointed out, it is limited to questions of law; and it is well established that, on an appeal against the exercise of a broad discretion (such as the chairman was exercising in that case), the appeal court or tribunal would only interfere with the exercise of the discretion if there has been some misdirection on a legal principle, or if the ultimate decision is plainly wrong.[11]On this restored hearing Mr Berkley has pursued the original application for permission to appeal. I pointed out to him that it is not enough to establish a question of law simply to produce new evidence that was not available at the original hearing. By statute, appeals from employment tribunals are limited to questions of law which arise from the proceedings before them or from their decision. This is not the same as an appeal proceeding under the CPR rules. For very good reasons Parliament has limited the right to take an employment dispute further to legal questions; and matters of fact cannot be challenged either when they have been reached on the original evidence or on the basis of new evidence, unless it can be shown that there has been an error of law.[12]When I asked Mr Berkley what the error of law was in this case he clearly and concisely stated his position as follows. He said that the new evidence which had emerged in the later proceedings in the Birmingham tribunal, which is referred to in my first judgment, provided a stand-alone basis for a rehearing of Mr Malkan's case. He said that the decision of the Employment Tribunal was perverse, having been reached on the basis of evidence which was incomplete, because evidence which was later to emerge in the Birmingham tribunal had been withheld at the hearing in the Shrewsbury tribunal. He said that I should have regard to the CPR rules, which confer a wider discretion to admit fresh evidence and, if appropriate, to direct a rehearing. There was no good reason, he submitted, why employees, in bringing their appeals to this court with fresh evidence, should be treated in a fundamentally different way from an ordinary litigant. Mr Berkley said that this was one of those exceptional cases in which there was a real prospect of the full court being persuaded to order a retrial on the basis of a fresh evidence.[13]Miss Collier for the Secretary of State for the Department of Health accepted that there might be exceptional cases in which, on the basis of fresh evidence, this court or the Employment Appeal Tribunal would remit the matter for rehearing. She helpfully referred to a number of cases which are referred to in Harvey on Industrial Relations. But, she submitted, this case did not fall within those exceptional categories of cases. There was no error of law, she submitted, and the Shrewsbury decision was not a perverse one; and there were real problems in pursuing the permission to appeal in the light of the decision to refuse the review. Her case was that the proper course for seeking to put the fresh evidence before the court was by way of a review and not by way of an appeal to this court. That course had been followed. It was unsuccessful and it was not now appropriate to seek to pursue this appeal. She adopted the reasons which are given in the decision of the chairman as to why the interests of justice would not be served by ordering a review, particularly relying on the fact that Mr Malkan is complaining in the proceedings of events which occurred in 1994.[14]It also emerges from documents that Mr Berkley handed to me at the opening of his application that, contrary to the earlier understanding of the position, there was a review application made by Mr Malkan after the decision was given in Shrewsbury and before he sought permission to appeal from the lack of success that he had in the Employment Appeal Tribunal. It now appears that on 17th July 1997 Mr Malkan wrote to the chairman in Shrewsbury a three-page letter setting out the grounds on which he sought a review. He alleged that there had been suppression of documents, incomplete discovery of documents, and fresh evidence relating to a number of matters, and he referred to some authorities in support of his submissions.[15]The chairman's reply on 23rd July 1997 was that he refused to consider the application as it was out of time, the decision having been sent to the parties as long ago as 30th January 1996. He said that such an application must be made not later than 14 days after the date when the decision was sent, that that limit was needed so that matters were dealt with when they were still fresh in the minds of the parties and the tribunals and that justice could be done in considering the application. He said there must be finality in litigation once a decision is made and sent to the parties.[16]Miss Collier's point on the significance of that is that Mr Malkan has made two unsuccessful attempts to review the original decision on his claim and he has not appealed against either of those. He did not appeal against the decision of the chairman in his letter of 23nd July 1997, and he is already out of time for appealing from the decision of the chairman on 15th May this year. In those circumstances she submits that it would not be appropriate to grant permission to pursue this appeal.[17]In his reply Mr Berkley said that there was a residual class of case, within which this case fell, where an appeal could be entertained on the basis of new evidence, and the cumulative effect of all the evidence which had been withheld in the Shrewsbury proceedings was to give this court jurisdiction on a question of law relating to Mr Malkan's claims.[18]I have considered these arguments and I remind myself of two things. First, as I have already said, this court only has jurisdiction to entertain appeals on points of law in employment cases and, secondly, permission should not be granted unless there is a real prospect of the appeal succeeding. I am not satisfied that either of those matters have been established on behalf of Mr Malkan. Having read the evidence and the reasons why the chairman has refused to grant a review on the basis of it, I have reached the conclusion that there is no question of law arising in the proposed grounds of appeal advanced on behalf of Mr Malkan. It necessarily follows from that that he cannot have any real prospect of succeeding, when the appeal to this court is limited to questions of law.[19]I know that Mr Malkan will be disappointed and he no doubt still feels aggrieved at the fact that he lost the case in Shrewsbury when, on his view, he might have won it if the evidence which he now has had been before it.[20]For the reasons which I have given, and for the reasons of the chairman of the Employment Tribunal which I would also adopt, I refuse this application. Order:Application refused; application for costs on an indemnity basis refused; applicant to pay costs on standard basis; detailed assessment of costs.

Cited in 3 later judgments