Gallagher v Screenbase Ltd [1992] UKEAT 494_92_1709

EAT

Gallagher v Screenbase Ltd

[1992] UKEAT 494_92_1709 · 1992-09-17

MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal from a Decision of a Chairman sitting at Southampton, who has directed that the hearing of an Originating Application alleging unfair dismissal, brought by Mr Gallagher against his employers Screenbase Limited, should be heard at Southampton on the 16th October.

The Originating Application is dated 8th June 1992, in it the Applicant gives his address as Cambridge, the address of Screenbase Limited is Andover and he does not give his place from which you worked if different from the above, he has left that blank. The reason for that was his uncertainty because, in fact, he does not work in any place but he works in an area and he works North of the Thames up to the Cambridge area. A great deal of his work was in North London.

Normally, as we understand it, the Central Office of Industrial Tribunals, would send the Originating Application to the area in which the Applicant worked, or possibly his home address. In other words it was sent to a place where it was most convenient for the Applicant to attend at the ultimate hearing before the Industrial Tribunal. In this case the Originating Application was sent to Southampton. As a result of that when Mr Gallagher realised it he rang up Central Office and was told that there was another sitting centre of the Southampton region, namely, at Reading; so he wrote a letter on the 6th July suggesting a hearing at Reading. However, subsequently he appreciated, as indeed he tells us, and is quite obvious from a letter, that the normal practice would have been for the hearing to have been either up near Cambridge, presumably Bury St Edmunds, or in London. He therefore applied to the Industrial Tribunal at Southampton for a transfer of the locum for the hearing.

The learned Chairman asked about witnesses and it was indicated that there are going to be three witnesses for the employers, two from Marlborough, one from Southampton. So that is one local witness and the other two will come across, presumably by car, from Marlborough. Then for Mr Gallagher, there is one witness in Grantham; one in Harlow; one in Croydon; one in Windlesham, which is down in Surrey, then one in Tidworth and one in Andover. The decision in the light of those witnesses was that the hearing should be at Southampton.

Mr Gallagher felt somewhat desperate about that because he, and indeed, he tells us, two of his witnesses, are not in work and if they would have to travel down to Southampton, would have to pay for overnight accommodation and the expenses would be quite considerable. So he wrote to this Court on the 23rd July appealing against the decision of the Southampton Industrial Tribunal and said this:

"I am the applicant in an `unfair dismissal' Tribunal case. In error, I omitted to complete the second part of section four of the application form to indicate a place of work different from the address of the respondent company. Mr Stephen Burton, at Bury St Edmunds Central Office, stated that if I done so the paperwork would not have been forwarded to Southampton. He also mentioned that where the addresses of applicant and respondent are far apart, as in my case, someone from his office should have clarified the position. However, owing to pressure of work he regretted that this had not been done. As you will see from the copies of correspondence enclosed the Southampton Chairman has rejected my requests for the Hearing venue to be moved to one more accessible for me and my witnesses. The 13th July letter from the respondent makes no objection to my request.

As my attempts to resolve the matter directly with Southampton have failed I am left with no alternative but to appeal to the EAT. I ask for the request that my case should be heard in London"

then he goes on to his appeal here.

The learned Chairman has, very kindly, set out a chronology and the indication towards the bottom is his conclusion that the matter should stay in Southampton, and he says:

"Next available hearing date in Reading is January 1993."

As Mr Gallagher pointed out in his letter, that the Respondents said that they would not be opposing the appeal, but subsequently, very recently, they have written to us saying:

"We have no objection to the change in the local of Hearing to Reading as requested by Mr Gallagher providing that the date currently scheduled for 16th October 1992 is not changed. This is because the various people required to attend on behalf of Screenbase Limited have all made the necessary arrangement so that they can be there on that date and a change would inevitably cause problems."

This appeal raises a situation which comes before us regularly. The decision where a case should be heard falls within the very wide discretion available to a Chairman in reaching that decision. He will take into account the issues involved and mainly he will take into account the convenience of the parties and their witnesses. However, he is entitled to take into account all the relevant matters. It is only if this Court applying the Wednesbury rules feels that the exercise of the discretion was in breach of those rules that it can interfere. The Wednesbury rules are well known, when looking at the exercise of a discretion whether in a judicial, or indeed an administrative sphere, the Court looks to see whether in reaching a decision the "decider", the person making the decision, has taken into account something he or she should not have taken into account, or has failed to take something into account which they must have taken into account. Or, that the decision was plainly, wrong. What is the situation here? The situation here, is that unless there had been some misunderstanding or error in the original dealing with this application, this present situation would never have arisen because, as indicated, the Central Office would have rung up the Applicant, and then reached a conclusion as to where the most convenient court was for the hearing. Looking at the situation it seems to the Industrial Members that clearly from the point of view of travel and convenience the most convenient court is in London. Now it may be that the London Courts are very busy, but looking at the witnesses it is clear that the witnesses can all travel up to London quite simply and there is only the one witness who is local in Southampton. It would mean that those from Grantham; Harlow; Croydon; Windlesham could all travel up to London, then the Hampshire, Tidworth; Andover and Marlborough again, could travel up to London and no doubt their travelling could be co-ordinated with the hearing.

The next factor, which so far does not seem to have been addressed, because only one day has been fixed, is the reasonable estimation of the length of this case. I have no particular experience in industrial tribunals, but sitting with me there are those who have, and the estimate here is that this case is bound to take more than one day and could well run into a third day.

The situation therefore, is this, it is likely that the one day fixed so far will be insufficient. Secondly, that the background is an error, and I use that word inoffensively, in the original administration without which this situation would not have arisen. Thirdly, that London would be convenient to the parties and witnesses whereas Southampton is inconvenient at least to one party, and to some of the witnesses and that therefore there is a strong case for London as the locum where the hearing should take place. Why isn't it in London? It is difficult to see what the answer is. The views of this Court in some ways are divided, the two Industrial Members sitting with me have taken the very clearest view with their experience that the appropriate place for the hearing of this case is in London. They are unable to see why it should not be sent to London, but no reasons are expressed, and indeed, that with the length of time it is likely to take it would be better to have a three day fixture in London than a day in Southampton which might then have to be adjourned over to another occasion part heard. They therefore take the view, and are strongly of the view, that this decision falls into the third limb of the Wednesbury rules that this decision was plainly wrong.

I have found myself somewhat diffident in interfering with the very broad discretion of the learned Chairman and whereas he has not expressed in detail his reasoning, and indeed in a case like this, one would not expect him to do so, I myself would have been very diffident about interfering with his discretion although, let me be quite clear, my own view, if I were able to substitute my own view, it agrees with that of the Industrial Members. In the circumstances I do not feel inclined to dissent about this and it will be a unanimous decision but it was only right that I should express my hesitation in that way.

It follows therefore, that this appeal will be allowed and there will be a direction that the hearing is to be heard in London (North) on a day to be fixed, we estimate the length of the hearing at three days.