Hayes & Ors v Transco Plc [2003] EWCA Civ 1261

Case No B2/2002/2440Neutral Citation No; [2003] EWCA Civ 1261
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRKENHEAD COUNTY COURT
His Honour Judge Trigger
Venue Royal Courts of JusticeDate Wednesday 17 September 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE BROOKELORD JUSTICE WALLERLORD JUSTICE CLARKE
Between
(1) MJ HAYESClaimants/(2) RT McDONALDRespondents(3) ALAN JEFFREY BROWNRespondentTRANSCO PLCDefendant/
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Brian Langstaff QC and James Stark(instructed by Thompsons) for ClaimantsClive Freedman QC and Sam Neaman(instructed by Osborne Clarke) for Defendant
Judgment

Introduction

[1]Two of the three claimants, and respondents to this appeal, were long time employees of British Gas, now Transco Plc (“Transco”), which was the defendant in the action and is the appellant in this appeal. The third claimant is the executor of a third employee. All three employees, whom (like the judge) I shall for convenience call “the claimants”, were employed as service engineers. In this action they claimed disturbance allowances under what they said was a term of their contracts of employment. On 6 November 2002 His Honour Judge Trigger gave judgment in their favour. He held that each was entitled to the principal sum of £1776 together with interest of £710.40 and costs to be the subject of a detailed assessment.[2]The judge refused Transco’s application for permission to appeal. Transco subsequently sought permission to appeal from this court. Its proposed grounds of appeal fall into two parts. In the first part (set out in paragraphs 1-10 of the appellants’ notice) it is said that the decision was wrong in substance or on the merits and that the appeal should be allowed under CPR 52.11(3)(a) In the second part (set out in paragraphs 11-18) it is said that the decision was unjust by reason of alleged serious procedural or other irregularities and that the appeal should be allowed under CPR 52.11(3)(b).[3]Longmore LJ considered the application on paper. He refused the first part of the application but directed that any renewal of it should be heard ex parte by two lords justices. He adjourned the second part to be heard inter partes before a three judge court with appeal to follow if permission was granted. Transco did renew the application on the first part and the application was heard on 8 May 2003 by Waller and Kay LJJ, who adjourned it to be heard at the same time as the remainder of the applications, again with appeal to follow if permission was granted.

Background

[4]The claims are made under what the claimants said was a term of the contracts of employment. The following is common ground. i) The claimants were employed as service engineers from 1978 in the case of Mark Hayes, from 1981 in the case of Robert McDonald and from 1969 in the case of John Hayes. ii) The claimants’ terms of employment were negotiated from time to time between British Gas and the trade union and in 1975 were set out in the relevant National Joint Industrial Council Handbook. Those terms were revised in 1993. I will call the contract as from 1993 “the 1993 agreement”. iii) The 1993 agreement contained a number of sections including section O, which was, so far as relevant, in these terms: “1. TRAVELLING – FARES AND TIME ALLOWANCES (RJIC) 1.1 Scheme No. 1(a) …(b) Employees Permanently Transferred from one Depot to Another Whenever employees are compulsorily transferred for operational reasons from their normal depot to another depot on a permanent basis the following allowances shall be paid:- (As amended 1.1.93) (i) A disturbance allowance will be paid to all manual workers who are transferred irrespective of their place of residence. The payment, which is taxable, will be made in two equal parts, 50% at the time of transfer and the other 50% six months after the transfer. The allowance will be paid only if the depot moves outside its existing site boundary and where the distance involved exceeds ½ mile measured in a straight line. The levels of allowance are as follows:• Over ½ mile and up to 4 miles - £480• Over 4 miles - £800 (ii) Employees incurring additional travelling time between their normal place of residence and depot as a consequence of the permanent transfer shall receive a travelling time allowance as follows: … Note on application of 1.1(b)(ii) The travelling time shall not be regardedas part of the normal working day and shall not involve overtime payments in any respect. (iii) Also from the date of the transfer those employees incurring additional travelling expenses between their normal place of residence and depot as a consequence of the permanent transfer shall receive a fares allowance as follows: … (RJIC 14.7.80)” (i) A disturbance allowance will be paid to all manual workers who are transferred irrespective of their place of residence. The payment, which is taxable, will be made in two equal parts, 50% at the time of transfer and the other 50% six months after the transfer. The allowance will be paid only if the depot moves outside its existing site boundary and where the distance involved exceeds ½ mile measured in a straight line. The levels of allowance are as follows:• Over ½ mile and up to 4 miles - £480• Over 4 miles - £800 (ii) Employees incurring additional travelling time between their normal place of residence and depot as a consequence of the permanent transfer shall receive a travelling time allowance as follows: … Note on application of 1.1(b)(ii) The travelling time shall not be regardedas part of the normal working day and shall not involve overtime payments in any respect. The travelling time shall not be regardedas part of the normal working day and shall not involve overtime payments in any respect. (iii) Also from the date of the transfer those employees incurring additional travelling expenses between their normal place of residence and depot as a consequence of the permanent transfer shall receive a fares allowance as follows: … (RJIC 14.7.80)” iv) The 1993 agreement formed part of the contracts of employment at least until May or June 1995. v) At least until that time the service engineers’ (including the claimants’) method of working was as described by the judge in paragraph 6 of his judgment as follows: “6. The historical background to the agreement that was implemented, which is common ground, is this that back in 1975 and indeed up to the end of April 1995 the system of work operated by the defendant or their predecessors, so far as service engineers were concerned was this: a service engineer would be assigned to a depot called his normal depot. He would be required to go each morning that he was working to his depot. He would there, at the depot, clock on and receive his duties and jobs for the day. He would then obtain a van, if necessary, to enable him to carry out his employment duties from that depot and take any particular equipment he might need for the day’s work from that depot and go about his normal duties. Then, at the close of his working day, he would go back in the van to that depot no doubt tell a supervisor what work he had done and lodge any documentation relating to that work with the supervisor and no doubt inform the supervisor of any problems. He would then leave that van at that depot and make his own way however that might be back whither he cometh.” vi) As from about 15 June 1995 there was a change in the system of working. It is that change in the system of working which has given rise to the issues between the parties. vii) Before that change, section O of the 1993 agreement was part of each contract of employment and each claimant had a “normal depot” within the meaning of paragraph 1.1(b), which in each case was Runcorn.

The Claim

[5]The claimants’ case is that section O of the 1993 agreement remained part of their contracts of employment even after the changes in 1995, that they continued to have a “normal depot” within the meaning of paragraph 1.1(b) and that they were compulsorily transferred for operational reasons from one normal depot to another as follows: from Runcorn to Warrington in November 1995, from Warrington to Chester in August in 1998 and from Chester to Ellesmere Port in February 1999.

The Defence

(i) The Defence

[6]Transco’s case was that as from the changes in 1995 the contracts of employment no longer included section O of the 1993 agreement but (so far as relevant for present purposes) were comprised in an agreement to carry out what was called District or Site Start Working as Transco’s service engineers (“TSEs”). In the alternative, the claimants no longer had a normal depot so that paragraph 1.1(b) had no application.

The Judgment

[7]The judge rejected Transco’s case and held that section O remained part of the contracts of employment and that the claimants were compulsorily transferred from their normal depot to another depot as set out above so that they were entitled to the disturbance allowances claimed.

Our Decision

[8]On Wednesday last, 10 September, we heard argument on both parts of the proposed appeal from Mr Clive Freedman QC on behalf of Transco. We then invited Mr Brian Langstaff QC to address us on behalf of the claimants on the second part of the case, namely on the question whether the decision was unjust by reason of alleged serious procedural or other irregularities. Having heard and considered the arguments on that part of the case we concluded that we should grant the application for permission to appeal on those grounds, that we should allow the appeal and that we should order a new trial. We informed the parties of those conclusions and said that we would give our reasons this week on a date convenient to counsel.[9]We also indicated, having heard further short submissions, that in those circumstances we did not think it appropriate to determine any of the issues on the grounds raised by the first part of the appeal.[10]Before giving the reasons which led me to the conclusion that the appeal should be allowed under CPR 52.11(3)(b), I note that, although the sums in issue are quite small, we were told that there are likely to be a number of other claims in which the same points will arise. It is no doubt for that reason that both parties are represented by leading and junior counsel. As I understand it, the claimants have the support of their trade union.[11]I turn to set out the reasons which led me to the conclusion that there should be a new trial.

The CPR

[12]By CPR1.1 and1.2 the court must seek to give effect to the over-riding objective of enabling the court to deal with cases justly. To that end the court has wide powers of case management which include a power to limit cross examination. Thus CPR 3.2 provides: “(i) The court may control the evidence by giving directions as to – … (b) The nature of the evidence which it requires to decide those issues; … (ii) The court may use its power under this rule to exclude evidence that would otherwise be admissible. (iii) The court may limit cross-examination.” (b) The nature of the evidence which it requires to decide those issues;[13]This court will only interfere with a judge’s decision to limit cross-examination if the decision is outside an acceptable range of decisions at which a judge can legitimately arrive: see eg Darren Watson v Chief Constable of Cleveland Police [2001] EWCA Civ 1547 per Sir Murray Stuart-Smith at paragraph 24.[14]CPR 52.11(3) provides:
“The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the low court.”
It follows that the question in this part of the case is whether the decision of the judge was unjust because of a serious procedural or other irregularity in the proceedings. It is not, however, sufficient that a serious irregularity should be shown or even that some collateral injustice should be established. The decision must be unjust. As I see it, whether the decision is unjust or not will depend upon all the circumstances of the case. (b) unjust because of a serious procedural or other irregularity in the proceedings in the low court.”

The Issues

[15]A consideration of all the circumstances of the case naturally includes a consideration of the case being made on either side. The debate before us (and indeed most of the debate before the judge) proceeded on the basis that section O of the 1993 agreement continued to be part of the contracts of employment throughout. Indeed, we were at no time shown the material evidencing the agreement that TSEs (including the claimants) should carry out “district or site start working”. On that basis the most important single question was whether the claimants continued to have a “normal depot” after the change in the system of working in 1995.[16]The claimants’ case was that they did and the judge so held. His key conclusion as to the change in their system of working was that after the change they no longer went to the depot in the morning in order to get their vans and to be given their jobs for the day. Instead they kept their vans at home and were provided with a laptop on which they obtained their jobs for the day (and no doubt much else). Equally they no longer took their vans back at the end of the day.[17]The judge further stated, as is I think common ground, that in April 1995 all three claimants were based at Runcorn and had their normal depot there. In paragraph 13 of his judgment the judge said this:
“13. I have heard considerable evidence concerning the nature of the claimant’s work both before and after May 1995. I have heard considerable evidence as to what link after 1st May 1995 was retained by any of these claimants with any base or depot. I heard considerable evidence about recollections as to what may or may not have been said, what may or may not have occurred, back in 1995, 1998 and 1999 when these alleged transfers occurred.”
Then in paragraph 16 the judge observed that the site start agreement to a considerable extent altered the nature of the manner in which the claimants were to perform their work and said this is paragraphs 17 to 20:
“17. The most important of those changes I have already referred to. It was the very fact that instead of the employees going to a depot and there commencing their employment by receiving their tasks, their vehicle, their equipment and doing the same in reverse at the close of each working day now they were to go in the van which they retained possession of overnight and kept in their driveways or outside their homes, with the assistance of the laptop direct to their day’s jobs. The connection, it is said by the defendant, between the claimants and any depot that might have been their normal depot prior to 1st May 1995 has effectively gone. That, it is said, must be looked at in looking to see whether that section O term remains a part of each of these three contracts of employment after 1st May 1995. 18. There was undoubted change in a lot of the (inaudible). There was undoubtedly a change in the way that some of the tasks were carried out and I am prepared to accept that the claimants were required far less to go to any particular depot after 1st May 1995. From 1st May 1995 onwards up to 1999, I am prepared to accept the evidence of Mr McDonald in particular that there was retained by employees such as these three claimants a usual depot to which he certainly felt assigned and I am prepared to accept that that was regarded by each of these employees as their normal depot still. 19. Factually I accept that at these depots these three claimants would receive the bulk of the documentation which they received in the course of their employment, such as trading manuals. I reject the suggestion that the bulk of correspondence that was issued by the defendant to the claimants went to the claimants’ respective homes from 1995 onwards. I accept that whilst the claimants might on occasions go to a base or depot in the course of their employment, other than the depot which they regarded as their normal depot, that that played any significant part in the day to day working activity. (sic) 20 In my judgment, the only significant change in the working practices from 1st May 1995 onwards was the fact that they did not go to their depots at the beginning and end of each day. That was advantageous to both employer and employee. It saved the employer a lot of needless queuing and waiting. It no doubt relieved personnel problems at those times at the depots and with the advance of electronic gadgetry they had the wherewithal to enable the employees to be used more productively by going direct from their homes to wherever the work call out was.”
[18]Mr Freedman challenges those conclusions together with a number of other conclusions reached by the judge. Indeed he criticises much of the judge’s approach. Nevertheless, in the light of the conclusion we have reached on the second part of the appeal it is not appropriate for us to express any conclusion on those submissions one way or the other. However, it is plain that much of the evidence at the trial focused on the changes in working practices in 1995. The claimants accepted that there were changes but said that they retained a normal depot, whereas Transco said that under the new system the claimants, as TSEs, did not have a normal depot but simply had a district or patch and were free to go to any depot or centre for any purpose connected with their work.[19]Mr Freedman submits that section O should be construed in the light of the circumstances which existed at the time it was agreed, which was in 1993 at the latest, and that on the true construction of section O a normal depot was one which was only used morning and evening outside working hours. He submits in the alternative that on the true construction of section O a service engineer could not have a normal depot unless he was required to use it. In the further alternative he submits that it is relevant to consider whether he was or was not required to use a particular depot as a matter of fact and that on the facts the service engineers were not required to use a normal depot under the new system.[20]The claimants’ case was and is that those submissions are wrong and that it was simply a question of fact whether at the relevant time of times the claimants had a normal depot. It is and was further said that the judge was right to hold that they did.[21]In these circumstances it can be seen that there is considerable overlap between the questions of construction of section O, which may be said to be questions of law, and the issues of fact. It was thus of considerable importance at the trial for both sides to adduce evidence of the nature and extent of the changes in 1995.

Interlocutory Activity

[22]Unfortunately, I have to say that, in my judgment, neither side prepared their case adequately in sufficient time. There were a number of interlocutory hearings and orders in advance of the trial. Although we have not seen the orders, we understand the position to have been as follows.[23]An order was made for the exchange of statements on 1 March 2002. By agreement it was extended to 31 March 2002. In the meantime, on 28 March 2002 District Judge Fitzgerald gave permission for supplementary statements to be served by 30 June 2002.[24]In the first round Transco served the witness statements of David Jenkinson, who was employed as a network operations manager, of Alan Watson, who was employed as an employee relations advisor, of Richard Ikin, who was employed as a human resources officer, and of David Walton, who was the network manager. The statements were dated 20 or 21 March 2002 and described the new system introduced in 1995 but not in any great detail. For their part, the claimants served statements by Robert McDonald, Mark Hayes, Philip Byrne and Patrick Delahunty, all of which were dated 21 March 2002. Mr McDonald described the changed system, also in no great detail, making no reference to any documents evidencing how the system operated. Mr Hayes simply supported the evidence of Mr McDonald. Neither Mr Byrne nor Mr Delahunty (who simply supported My Byrne) said anything about how the new system in fact worked.[25]Subsequently on 23 May Mr Byrne made a further statement in which he said that during the negotiations which led to the new agreement he had been expressly assured by Transco’s district engineer, Mr D Smith, that the new agreement would not lead to the end of disturbance allowances or travel allowances.[26]On Transco’s side, four further witness statements were produced: the second statement of David Jenkinson, which was of four pages and made in June 2002, a statement of David Walton dated 7 June, which so far as I can see is in the same form as his statement dated 21 March 2002, a four page statement of Geoffrey Davenport dated 17 June and the second statement of Richard Ikin dated 27 June 2002. Mr Jenkinson gave some further details of the changes made in 1995 and disagreed with a number of aspects of Mr McDonald’s statement. Mr Davenport, who was employed as a network operations manager, also gave some details of the changes. Mr Ikin responded to part of Mr. McDonald’s statement and to part of Mr Byrne’s statement, although not to the part I referred to above.[27]The trial was fixed to take place in November 2002. In October, some 3½ weeks before the trial, Transco made an application for permission to adduce the evidence contained in a supplementary fifteen page statement from Mr Jenkinson dated 7 October and in a supplementary four page statement from Mr Davenport dated 8 October. The claimants resisted the application and it was refused by District Judge Johnson. Although we have not seen her judgment or a record of her reasons, we understand that the grounds of the district judge’s refusal were that the statements were produced very late, that no good reason had been given for their lateness, that the evidence went beyond amplification or clarification, that there was a real risk of substantial prejudice in the claimants having to deal with the new evidence at short notice before the trial, that the evidence suggested the existence of documents that had not been disclosed and that the admission would increase the costs and extend the trial.[28]It is important to note that there was no appeal from the decision. It is, however, also important to note that neither party sought to rely upon any further documents which had not as yet been disclosed. The third statement of Mr Jenkinson gave much more detailed information than hitherto about the system worked after the changes in 1995. It included specific challenges to the contents of Mr. McDonald’s statement by reference to the use or otherwise of depots in connection with matters such as timesheets, the testing of gas detecting devices and electrical equipment, meetings with managers, the use of vans, the existence of lavatories and a mess room at Runcorn, social events, the keeping of log sheets, the role of line managers, team briefings, addresses for correspondence, working time regulation meetings, the place where any light duties would be carried out, the deposit of environmental waste and administrative work. Despite the district judge’s decision, it is fair to Transco to note that much of the statement is framed as a detailed response to evidence contained in the statement of Mr. McDonald. The thrust of it is that after the changes TSEs were not attached to, or did not have, a normal depot. Mr Davenport’s second statement supported Mr Jenkinson and made one or two further short points.

The Trial

[29]At the trial the parties were represented by junior counsel, the claimants by Mr Stark and Transco by Mr. Neaman, both of whom appear on this appeal. In order to resolve the issues on this part of the case it is I think necessary to summarise briefly what happened at the trial.[30]Unfortunately the case was transferred to the Birkenhead County Court for trial at the last minute, with the result that the judge did not have an opportunity to read the papers before the trial began, which was on Monday 4 November 2002.[31]At the outset of the trial Mr Stark told the judge that he had just been handed a number of documents which, as he put it, had only just come to light. I will call them ‘the new documents’. They were some 28 pages of Transco documents which showed the operation of the post 1995 system. As stated earlier, the claimants are supported by their trade union. It is far from clear when the new documents came into the hands of the trade union or indeed of the claimants’ solicitors, but it is plain that Transco’s solicitors were given no notice of the claimants’ intention to rely on the documents before the first day of the trial. In my judgment, if the claimants wished to rely upon such documents or any witness’ evidence in relation to them, it was their duty to notify Transco in accordance with the interlocutory directions referred to above or, in any event, as soon as the documents were in the possession of their advisers.[32]On the other hand, the new documents were Transco’s documents and it is at least arguable that they should have been disclosed earlier in the action as being documents which either adversely affected Transco’s own case or adversely affected or supported another party’s case, namely the claimants’ case, within CPR 31.6(b). However, I can understand the view being taken that the documents are neutral. I express no further view on this point because, having been adduced in evidence at this trial, the documents will no doubt play a part in any retrial and it is not appropriate for us to express any opinion which might prejudge any of the issues at a retrial.[33]In any event, Mr Stark told the judge that he intended to rely upon the new documents. Mr Neaman said that he hoped that they would be able to find a way in which the documents could be put before the judge because he did not want to appear to stand on any technicality. All he needed to do was to have sufficient time to take instructions, to cross-examine based upon those instructions and to enable his witnesses to be able to give evidence about them. The judge accepted that he needed time and said that he should feel free to seek instructions at whatever time he thought appropriate.[34]Mr Stark then opened the case and the court adjourned some time before the short adjournment in order to have the documents photocopied and to permit Mr Neaman to take instructions and the judge to read the witness statements. After the short adjournment Mr Stark called Mr McDonald to give oral evidence. He put Mr McDonald’s statement in evidence as part of his evidence in chief and, with the judge’s permission, asked a few supplementary questions. He then asked Mr Mcdonald to look at the new documents one by one. That exercise covered some eight pages of transcript. Mr McDonald was cross-examined by Mr Neaman for the remainder of the afternoon, although there was a fairly lengthy hiatus when there was a power cut.[35]In the course of the cross-examination the judge observed that he was not being much assisted by very much of the evidence either in chief or in cross-examination, although he also said that if they did not finish the case on Wednesday it would be adjourned part heard to a date to be fixed. In the course of the cross-examination Mr Stark objected to Mr Neaman asking questions based upon the contents of the statements which had been excluded by the district judge. He submitted that it appeared that all of the questions seemed to relate to that evidence and that, since the evidence had been excluded, it was not proper to put questions based upon it. Mr Neaman submitted that he was entitled to put the points to the witness, who would either agree with them or not. The judge (to my mind correctly) accepted Mr Neaman’s submission, subject to relevance.[36]It is important to note that in the course of that discussion Mr Neaman said that he would in due course be renewing the application to adduce the evidence which had been excluded by the district judge. In the light of what happened on the next day, it is perhaps unfortunate that he did not make the application when Mr Stark sought to adduce the new documents or during his cross-examination of Mr McDonald. However, when Mr Stark expressed concern that Mr Neaman might be going to renew his application, the judge said “let us face it when it is made”.[37]There were one or two occasions during Mr Neaman’s cross-examination when the judge intervened expressing dissatisfaction but, for my part, I do not think that any of them assists to resolve the issues in this part of the appeal. Before the end of the afternoon Mr Stark again made the same objection as before but it was again rejected by the judge. The afternoon ended with the judge saying that he would permit the line of cross-examination to continue at 10.30 in the morning. He added:
“You have got to be thinking of dates after Wednesday.”
[38]As I see it, there are no grounds for complaint as to anything which occurred on the first day. On the one hand, Mr Stark had been permitted to adduce the new documents without objection by Mr Neaman, subject to his being able to take instructions and, in effect, to respond to them. On the other hand, Mr Neaman had indicated an intention to renew the application to adduce the excluded evidence and it was left that he could continue to cross-examine Mr McDonald the next morning. There was no suggestion that his cross-examination might be curtailed in any way. In these circumstances he, not surprisingly, prepared for the next day on that basis.[39]The next morning began with Mr Stark returning again to his objection that Mr Neaman was cross-examining on the basis of the evidence excluded by the district judge. In the course of those submissions the judge expressed disquiet about what he called the bitterness between union and employer. He said that if the bitterness was symptomatic of relations at Transco it was an utter disgrace. He added, without immediately giving either counsel an opportunity to make submissions on the point, that he was, in any event, going to make an order limiting the time for cross-examination and re-examination from then on. He set out a detailed timetable for the examination, cross-examination and re-examination of each of the witnesses. The timetable included “five more minutes only” of cross-examination and ten minutes re-examination of Mr McDonald and 30 minutes cross-examination of Mr Mark Hayes. The judge also added that no examination in chief would be permitted beyond the witness statements unless exceptional grounds could be shown for it.[40]The judge then said that he would hear submissions on what he called the applications. As I read the transcript, the judge meant Mr Stark’s application based upon his objection to Mr Neaman’s line of cross-examination in the light of the excluded statements and Mr Neaman’s proposed application for permission now to adduce the excluded evidence. On the first point Mr Neaman reiterated the submissions he had made the day before. During those submissions the judge said that he accepted them subject to prejudice and relevance.[41]On the second point Mr Neaman explained his position in this way. He was not initially intending to renew the application which had been refused by the district judge because he recognised that it had not been appealed and that he would therefore have to show a material change of circumstances before the court would accede to it. There were however four things which had happened on the first day which prompted him to indicate to the judge as soon as he had reconsidered the position that he intended to renew the application. Those were these: i) the claimants produced the new documents without any notice to the court or to Transco on the first morning of the trial; ii) the claimants were allowed to adduce evidence in chief relating to the documents without prior warning or time-tabling; iii) Mr McDonald was led through the new documents as part of his evidence in chief; and iv) that evidence went far beyond mere amplification of his witness statement.[42]Mr Neaman submitted that the new evidence was crucial extra evidence which went to the core of the defence case and that in the light of the way in which the new documents had been dealt with it would now be unjust to exclude the evidence in the statements of the two witnesses which had been excluded by the district judge but in respect of which notice had at least been given to the claimants well before the trial.[43]The judge observed that Mr Neaman had not objected to the new documents or the evidence relating to them. Mr Neaman responded that he had had to make a snap decision, to which the judge replied that the decision may have been wrong but that Mr Neaman had made it and that the points now being made were misconceived because he had agreed to the admission of the evidence or, at least, that that was a relevant circumstance. Mr Neaman further submitted that if the claimants’ application to rely upon the new documents and to rely upon a further statement of Mr McDonald had been before the district judge, she would either have admitted all the evidence or excluded all the evidence. She would certainly not have admitted the new evidence and the further statement upon which the claimants wished to rely but excluded the further statements upon which Transco wished to rely. Morevoer, any such decision would have been wrong in principle, especially when they were both said to be relevant to the same questions, namely the changes made by the new system introduced in 1995 and the reliability of Mr McDonald’s evidence.[44]Mr Neaman further submitted that the restriction of his cross-examination to only five more minutes was unjust in the light of all the circumstances including the absence of any warning and the fact that he had not had an opportunity to study the new documents in any detail before the end of Monday afternoon. Mr Neaman also said that as a result of what had happened the day before they had contacted two more potential witnesses, namely a Mr Dean and a Mr Massey.[45]The judge rejected Mr Neaman’s submissions. He thus insisted on his timetable and refused to permit Transco to adduce either the evidence excluded by the district judge or that of the two new potential witnesses. He also rejected Mr Stark’s submissions, but simply said to Mr Neaman that he had five minutes more of cross-examination. He further refused Mr Neaman’s application for permission to appeal the rulings and said that he would give his reasons later because he was anxious to make progress.[46]It appears to me that the principal reason which led the judge to adopt the approach which he did was because he formed the view that, unless he did, the trial would not be completed by the end of Wednesday and that, if it was not, it could not be resumed until April 2003. He said this:
“I cannot come back to this case until 2003. I have got an itinerary which takes me to 31 March 2003 so if it was part heard it would not be before April 2003. That is hopeless, I would have forgotten the evidence. That simply cannot be and that is why I am imposing a timetable to finish this case tomorrow. It may be that I am not able to give judgment tomorrow but nothing you have said so far makes me alter, in any way, the proposed timetable.”

The judge also pointed to the fact that the parties had agreed three days for the trial.

[47]In refusing permission to appeal after giving his judgment, the judge noted that Mr Neaman had been given the opportunity to object to the new documents being admitted in evidence but did not do so. The judge added that in those circumstances it seemed to him that it could not be shown that there had been a sufficiently material change of circumstances since the decision of the district judge to permit him to accede to the application.[48]The principal thrust of Transco’s complaint, as I see it, is that it was unjust to restrict the cross-examination without notice in the draconian way in which the judge did and that it was unjust not to permit Transco to adduce the previously excluded evidence. It is also submitted that in the course of the argument the judge made a number of unwarranted observations about the way Mr Neaman conducted the case.[49]As to the latter point, judges are entitled to make robust observations in the course of a trial, especially if they think that counsel could be proceeding more quickly. Although, the judge made one or two observations which would I think have been better left unsaid, or at least put differently, for my part I do not regard any of them, either individually or cumulatively, as amounting to a serious procedural or other irregularity within the meaning of CPR 52.11(3)(b). I would, however, like to add that I do not think that anything done at the trial by Mr Neaman (or indeed Mr Stark) can properly be criticised in any way.[50]For my part, I would accept the principal thrust of Transco’s submission set out above. The two points, namely the restriction upon the cross-examination and the refusal of the application to admit the previously excluded evidence should I think be considered together as part of all the circumstances of the case. In my judgment, the more significant point is the judge’s refusal to permit Transco to adduce the previously excluded evidence.[51]The evidence of Mr McDonald was central to the issue whether the TSEs still had a normal depot after the changes. The claimants were permitted as part of his evidence in chief to adduce evidence which was or was said to be relevant to that question. The evidence in the statements of Mr Jenkinson and Mr Davenport excluded by the district judge was also relevant to that question. If the question whether all this material should be put in evidence had been raised before the matter came before the district judge in October, it seems to me to be more likely than not that it would all have been put before the court by agreement.[52]However, in the absence of agreement, it seems to me to be almost inconceivable that, if the district judge had been asked to decide whether the claimants should be permitted to adduce the new evidence at the same time as she was asked whether Transco should be permitted to adduce the evidence which she in fact excluded, she would have permitted the new evidence from the claimants but not that from Transco.[53]Apart from the time problem which emerged on the second day, the only reason the judge gave for distinguishing between the new evidence which the claimants relied upon and the evidence which Transco wished to rely upon was that Mr Neaman did not object to the claimants relying upon the new documents or the evidence of Mr McDonald in relation to them. In my judgment, it was unjust to Transco to draw that distinction.[54]Mr Neaman was doing his best to assist the court by not causing difficulties. He made it clear on the Monday that he intended to make his application with regard to the evidence which had been excluded by the district judge. On the judge’s view, the mistake he made was not to submit at the outset that the new documents should only be admitted if the excluded evidence was admitted. It was in my opinion unjustly harsh to Transco to approach the matter in that way. In my judgment, in order to hold the balance fairly between the parties the judge should have acceded to Mr Neaman’s application and admitted the evidence. In the result Transco was deprived of the opportunity of putting relevant evidence before the court on a key issue, namely whether the TSEs still had a normal depot after the changes.[55]I would hold that the judge erred in principle in refusing that application. It appears to me to be not unlikely that the judge would have acceded to the application if it had been made on the first day when there appeared to be no significant pressure of time. However that may be I do not think that the decision was justified by the problem of time which the judge had identified by the beginning of day two. In my judgment, it is much more likely than not that, if the judge had admitted the evidence and permitted somewhat more latitude than the five minutes’ cross-examination, the evidence and submissions would have been complete by the end of Wednesday, even if judgment had to be reserved.[56]The unfairness of refusing to admit the evidence was, in my judgment, exacerbated by the fact that, without being given any notice, Mr Neaman was deprived of the opportunity to complete his cross-examination of Mr McDonald, whose evidence was central to the resolution of what may be called the normal depot issue. It may be that, if the judge had admitted the evidence upon which Transco wished to rely or if the new evidence had not been admitted or spoken to by Mr McDonald, that would not have mattered but, given the refusal to admit the evidence the decision to restrict the cross-examination to five more minutes, was in my opinion wrong in principle and unfair to Transco. In these circumstances it was, in Sir Murray Stuart-Smith’s phrase, outside the acceptable range of decisions at which the judge could legitimately arrive.[57]I see the force of Mr Langstaff’s submission that Mr Neaman was given 30 minutes to cross-examine Mr Hayes, which he did not do and that he therefore chose not to cross-examine the claimants’ witnesses on the points which it is now said would have been put to Mr McDonald. However, in his statement Mr Hayes simply said that he supported the evidence of Mr McDonald and it had been agreed that it was not necessary for Mr Neaman to put Transco’s case to both Mr McDonald and to Mr Hayes. In these circumstances I would not criticise Mr Neaman for not taking that step, so that the opportunity of cross-examining Mr Hayes did not in my view cure the unfairness to which I have referred.[58]In these circumstances I have reached the clear conclusion that the refusal of Mr Neaman’s application to adduce the excluded evidence together with the restriction on his cross-examination of Mr McDonald amount to a serious procedural irregularity within the meaning of CPR52.3(b). I have also reached the further conclusion that, in the light of the fact that the excluded evidence and the cross-examination were directly relevant to what changes in working practices there were after 1995 and thus to a key question in the case, namely whether the claimants retained a normal depot under the new regime, the decision of the judge is unjust because of a serious procedural irregularity. It is for that reason that I concluded that the appeal should be allowed on this ground. It also seemed to me that in these circumstances the just course was to order a new trial.[59]I would add that I reach those conclusions on the particular facts of this case. Nothing in this judgment is intended to fetter in any way the useful power which judges have to control cross-examination, which can often be unnecessarily prolix or even unnecessary altogether. All depends upon the facts of the particular case. The facts of this case do, however, point perhaps to the importance of giving reasonable notice of an intention to curtail cross-examination.[60]I would further add that I do not regard the decision of the judge to refuse to permit Transco to call the two further witnesses whom they did not originally intend to call, namely Mr Dean and Mr Massey, as in any way flawed.

The Future

[61]As I see it, at any new trial each party will be free to call what witnesses it wishes, subject of course to appropriate directions at a case management conference. Nothing in this judgment is intended to prejudge any issue at that trial, whether of fact or law. Brooke LJ indicated on the last occasion that, subject to the then state of the pleadings, each party should be free to advance whatever case it thinks fit, including any case as to the terms of the contracts of employment and that nothing in the judgment of the judge will give rise to an issue estoppel.[62]We were told that a number of other claims may raise similar, if not identical issues, and expressed the view that in that event it would be desirable that, if the issue cannot be settled by negotiation, a suitable test case should be brought before the court to avoid the risk of a multiplicity of litigation. To this end both parties should reconsider the pleadings. Thus, for example, we were puzzled by the fact that a statement from Mr Byrne was put in, apparently with a view to the claimants relying upon assurances given during the negotiations, but, as Mr Freedman pointed out, any such reliance was not apparently pleaded.

Conclusion

[63]These are the reasons which led me to the conclusion that the appeal should be allowed on the ground of serious procedural irregularity and a new trial ordered of what I hope, in the absence of settlement, will be a test case.[64]I agree.[65]I agree.

Order

Appeal allowed – Counsel to provide Minute of Order. Costs below and of the appeal to be costs in the case.

Cited in 10 later judgments

and 1 more case