Blockleys Plc v. D Miller [1992] UKEAT 644_88_3007

EAT
Blockleys Plc v. D Miller
[1992] UKEAT 644_88_3007 · 1992-06-30
MR JUSTICE WOOD MC (PRESIDENT) This is an application made by Blockleys Plc, who were the Respondents before an Industrial Tribunal and the Appellants before us, for review of a decision reached by this Tribunal on 7th June 1990 after a hearing earlier that year. The reasons for delay are numerous and neither side has put forward any criticisms.The history of the proceedings is as follows. By an Originating Application dated 22nd October 1981 Mr Miller, who is black, stated his case of alleged racial discrimination thus:-
"In mid July I went to the respondents premises with Mr John Newton to collect an application form. I had heard through a friend that the respondents had several vacancies for general labourers. I completed the application form and posted it to the respondents. When I had not heard anything further from the respondents regarding my application I telephoned them on 29th July 1987. I was informed by the receptionist that all the vacancies had been filled. I believe that I have been treated less favourably because of my race, colour, ethnic or national origins in not being interviewed for these vacancies and being rejected for these vacancies because (a) the respondents do not employ any black people out of a workforce of 900 employees; (b) no qualifications were required for these jobs apart from being physically fit; (c) I had already done a similar job previously; (d) I was told by others that I would not get a job with them because I was black."
The Notice of Appearance is dated 1st December 1987. The Applicant is supported by the Commission for Racial Equality.A questionnaire was delivered and answered. Attached to the answers was a schedule showing the application forms received by Blockleys and details of how the applications were processed. A hearing took place on 10th and 11th October 1988 at Shrewsbury before an Industrial Tribunal with an experienced Chairman, Mr Leo Blair. By a decision promulgated on 28th October 1988 the Tribunal found in favour of the Applicant.There was then an appeal to this Court which was dismissed. We refused leave to appeal.On 3rd July 1990 Blockleys applied to the Court of Appeal for leave to appeal. A Notice of Appeal is dated 21st September. A Respondent's Notice is dated 10th October and on 12th November 1990 Bingham LJ gave leave to appeal.The application for review is dated 19th June 1990 and Mr Miller's answer is dated 1st March 1991. The application reads:-
"The Appellants apply, pursuant to Rule 26(1) of the Employment Appeal Tribunal Rules 1980, for a review of the Order of the Employment Appeal Tribunal dated the 7th day of June 1990 dismissing the Appellants' appeal from the decision of the Industrial Tribunal held at Shrewsbury on 10th and 11th October 1988.
The grounds for the application are that:(1) the order was wrongly made as a result of errors on the part of the Tribunal; and/or

(2) the interest of justice require such a review."

Thereafter particulars are given.Mr Weitzman, for the Company, makes two main submissions. The first is that during the course of our judgment, we found that Mr Butler, the general manager, had asked Miss Wallace, his secretary, whether she could remember the name of a black man who had attended with a social worker and asked for an application form. The relevant period was during July 1987. It is now clear that we had misread the notes of evidence and that this conversation did not take place until after the date of the Originating Application at the end of October that year. This conversation was therefore not relevant to the issue of knowledge by Blockleys in July 1987 that the Applicant, Mr Miller, was from an ethnic minority. It is quite clear that we did misread the Notes of Evidence.Mr Weitzman argues that this erroneous finding of fact destroyed the sub stratum of the whole of our judgment and thereby so distorted the hearing process that Blockleys did not have an opportunity properly to argue its case. It was in essence an unpleaded point, wrongly relied upon. It had not been relied upon by the Industrial Tribunal. Thus the whole process by which the Employment Appeal Tribunal had reached its decision was flawed. In the application for review therefore, the Employment Appeal Tribunal was not being asked to correct an error of law nor to review a finding of fact, it was being asked to set aside its decision to make a finding in favour of Blockleys on the grounds that because of this error of fact its decision could not be allowed to stand.Secondly, Mr Weitzman submitted that in referring in our judgment to the Schedule attached to the Questionnaire, we had misunderstood some of the details therein shown, but that in any event we were not entitled to attach any importance whatsoever to that schedule, because although it formed part of the written evidence in the case, no cross-examination took place upon it and the Industrial Tribunal did not mention it specifically in its Reasons. He submitted that much more will be needed to be known about that Schedule before any reliance could properly or safely be made upon it. A great deal more evidence and explanation would be required.Mr Sedley, for Mr Miller, submits that the first point shows an erroneous understanding of the issues involved and he does not accept that the second point has any merit, but before considering any such submission he contends that we must decide whether in law we have any power to interfere with our judgment in any way at all.The application is made under Rule 26 of the Employment Appeal Tribunal Rules 1980 (SI 1980 No.2035).

"26. Review of decisions and correction of errors

(1) The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that -(a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;(b) a party did not receive proper notice of the proceedings leading to the order; or(c) the interests of justice require such review.(2) An application under paragraph (1) above shall be made within 14 days of the date of the order.(3) A clerical mistake in any order arising from an accidental slip or omission may at any time be corrected by, or on the authority of, a judge or member."Sub Rule (3) clearly corresponds to the slip rule in the Rules of the Supreme Court, Order 20, Rule 11. The enabling provision under which the Rules are made by the Lord Chancellor is contained in paragraphs 17 and 18 of Schedule 11 of the Employment Protection (Consolidation) Act 1978. Paragraph 18 deals with specific aspects of the Rules which do not apply and it is the general enabling power in paragraph 17 which is relevant. The paragraphs read:-
"17 - (1) The Lord Chancellor, after consultation with the Lord President of the Court of Session, shall make rules with respect to proceedings before the Appeal Tribunal.
(2) Subject to those rules, the Tribunal shall have power to regulate its own procedure.18 Without prejudice to the generality of paragraph 17 of the rules may include provision -(a) with respect of the manner in which an appeal may be brought and the time within which it may be brought;(aa) with respect to the manner in which an application to the Appeal Tribunal under section 5 of the Employment Act 1980 [or section 5 of the Emnployment Act 1988] may be made;(b) for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses; (c) enabling the Appeal Tribunal to sit in private for the purpose of hearing evidence to hear which an industrial tribunal may sit in private by virtue of paragraph 1 of Schedule 9; (d) for the registration and proof of any award made on an application to the Appeal Tribunal under section 5 of the Employment Act 1980 [or section 5 of the Employment Act 1988; (e) for interlocutory proceedings to be dealt with otherwise than in accordance with paragraph 16."Mr Sedley emphasises the use of the words "proceedings" and "procedure" in that enabling provision.He makes two substantial submissions. If he fails on the first then he contends that he must succeed on the second.First, he submits that Rule 26 for the reasons we give later cannot be construed so as to give the right, which Blockleys now seek to utilise, namely to challenge the decision already given by this Court, because so to do is in reality asking us to sit in appeal against our own decision.Secondly, and if his first submission fails, he contends that in the light of the present state of proceedings now before the Court of Appeal, where that Court is awaiting the outcome of the present application and where it has given leave to appeal, it would be an abuse of process for us to continue with any review of our decision.His first argument runs as follows: The EAT is a Superior Court of Record. Finality in litigation is desirable in the public interest. Once a Court has reached its decision it is functus officio. The principle of res judicata must be applied so long as there has been due process, subject always to any right of appeal to a Higher Court. One cannot litigate the same issue twice in the same forum. These are propositions of general law, well established over the years, in order to provide a tiered system of justice in which unsuccessful parties must either accept decisions or appeal; in which a successful party will have the fruits of his success, and to prevent endless arguments from either side to a dispute. Any rule which sought to undermine or alter such clear general principles of our law, would need not only to be very clear and explicit but also, as this is subordinate legislation made by the Lord Chancellor, would need to be clearly within the enabling provision of the primary legislation. Clear vested rights under our general law and rights granted by primary legislation cannot be altered by these rules which are subsidiary legislation.Mr Sedley contrasted the wording of paragraph 17 of Schedule 11 of the 1978 Act with the wider wording of an earlier provision in paragraph 19(e) of Schedule 3 of the Industrial Relations Act 1971.In support of this broad submission on the well established principles of approach to the construction of delegated legislation he relied upon the leading case of MIXNAMS PROPERTIES LTD v. CHERTSEY URBAN DISTRICT COUNCIL [1964] 1 QB 214. Reliance was placed upon a number of passages from the judgment of Diplock LJ but we need only refer to a short passage on p.238 where in referring to a rule of construction he says this -
"... the general rule of construction that the legislature is presumed not to have intended to make any substantial alteration in the law beyond the immediate scope and object of the statute which confers the power. If this presumption applies, as it does where Parliament is itself making changes in the law by the direct exercise of its sovereign powers, it applies a fortiori to the construction of clauses by which Parliament delegates its sovereign powers to persons over whose exercise of the delegated powers Parliament itself retains no direct control. ..."
In order to examine the use of powers of review, both in the Industrial Tribunals and in the Employment Appeal Tribunal, we were referred to a substantial number of cases.We start with two recent cases. The first is SPRING GROVE SERVICES GROUP PLC v. HICKINBOTTOM [1990] ICR 111. The facts are not important for our present purposes but we deal with the general principles of law at p.114G where we cite from a number of cases.
"The power of recall was considered by this appeal tribunal in Hanks v. Ace High Productions Ltd [1978] ICR 1155 (Phillips J, Mr A C Blyghton and Mr A J Nicol). It was held that an industrial tribunal had a power of recall and in so holding the appeal tribunal said, at p.1158:
"At the end of the day it seems to us that, by analogy, the practice of the High Court (and in the county court) can and ought to be applied in the case of industrial tribunals."
However it was made clear that the power should be used sparingly in the following passage, at p.1158:
"It is that class of case, where the error or omission is obvious and comes to light soon after the hearing and before the order is drawn up, which is suitable to be dealt with in this way, rather than by way of review. Putting the matter negatively, it would obviously be wrong to make use of the power, in effect to rehear the case, or merely to hear further argument on matters of fact with the possibility of changing the mind of the tribunal on the facts, when already a clear decision has been reached upon them. It is intended for the plain omission or the simple error which can be put right, and matters of that sort. In other words, in summary, the power exists. It should be used carefully, sparingly and not as a matter of course."
Upon reading the draft decision and reasons of the hearing of 30 November and those of 20 April, it is quite apparent that the changes made go quite outside those contemplated by the limitations expressed in Hanks v. Ace High Production Ltd [1978] ICR 1155. Moreover there was a clear change made in many of the findings of fact. It was not merely a reconsideration of a legal authority, which had already been cited. It also seems right to note in Lamond v. Fry's Metals Ltd [1985] ICR 566 that, after a decision has been announced, the Court of Appeal clearly deprecates the opening of cases even in order to reconsider the law. That same view seems to have been taken by this appeal tribunal when considering the powers of an industrial tribunal at a review hearing: see Trimble v. Supertravel Ltd [1982] ICR 440 (Browne-Wilkinson J., Mr J D Anderson and Mr T H Goff) where the following passages occur, at pp. 442, 443:
"As it seems to us the fundamental question is whether or not the industrial tribunal's decision that the employee had failed to mitigate her loss was reached after she had had a fair and proper opportunity to present her case on the point, being aware that it was a point which was in issue. We do not think that it is appropriate for an industrial tribunal to review their decision simply because it is said there was an error of law on its face. If the matter had been ventilated and properly argued, then errors of law of that kind fall to be corrected by this appeal tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the tribunal which, in our view, can be correctly dealt with by a review under rule 10 of Schedule 1 to the Industrial Tribunal (Rules of Procedure) Regulations 1980, however important the point of law or fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument ... As we have indicated, in our view the distinction is not between minor errors and major errors; what is relevant is whether or not a decision, alleged to be erroneous in law, has been reached after there has been a procedural mishap." "
The second case is CASELLA LONDON LTD v. BANAI [1990] ICR 215. We dealt with the principle involved in particular at p.221B to C.Perhaps the earliest authority which sets the matter out clearly is FLINT v. EASTERN ELECTRICITY BOARD [1975] ICR 395 in the judgment of Phillips J at p.404H where he says -
"But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are prefectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review."
It is clear that in the light of the general principles of law applicable, the power of review whether in an industrial tribunal or in this Appeal Tribunal must be exercised within a very narrow margin. The following instances appear from the cases:-

(a) where the issue of jurisdiction arises -

BRITISH MIDLAND AIRWAYS v. LEWIS [1978] ICR 782

STANNARD v. WILSON [1983] ICR 652.

(b) where there has been a fundamental procedural error - lack of due process

TRIMBLE v. SUPERTRAVEL [1982] ICR 440

(C) fraud - appearing very soon after the decision

YORKSHIRE ENGINEERING v. BURNHAM [1974] ICR 77

(d) simple cases of minor error or omissions - very much as one would use the slip rule

HANKS v. ACE HIGH [1978] ICR 1155

There are some three cases which might seem to fall outside these categories and in which a number of those earlier cases were not considered namelyNIKITAS v, SOLIHULL BOROUGH COUNCIL [1986] ICR 291 and JENKINS v. P & O [1991] ICR 652.These cases may need reconsideration in due course. The case of LADUP v BARNES [1982] ICR 107 is really concerned with the new evidence rule and is special to its own facts.Accepting, as we do, the submissions of Mr Sedley on this point, we construe Rule 26(1)(a) as covering the situation where some alteration is necessary to the form of the Order made as a result of the judgment and Rule 26(1)(c) as being of limited scope intended to repair an error in jurisdiction or a defect in the process of the appeal, or the conduct or procedural unfairness - the absence of "due process" - the technical correctness of the decision. It is not to allow cases to be re-argued and re-heard. We would adopt the reasoning in SPRING GROVE ; CASELLA and STANNARD ; and the others referred to in those authorities.Mr Sedley's second and shorter submission relates to abuse of process. He relies upon the paragraph at the beginning of the speech of Lord Diplock in HUNTER v. CHIEF CONSTABLE OF WEST MIDLANDS [1982] AC 529 , 536C-D.
"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."
We agree that for this Appeal Tribunal to review its decision at this present stage in the overall proceedings, when that decision is the subject of an appeal after leave given before the Court of Appeal, would amongst right-thinking people (including lawyers) tend to bring the administration of justice into disrepute.Mr Weitzman has drawn our attention to BLACKPOLE FURNITURE LTD v SULLIVAN [ 1978] ICR 558 . The headnote in that case reads -
"Where a party to proceedings before an industrial tribunal applies for a review of the tribunal's decision the hearing of the application can continue even though the decision is under appeal. If the Chairman of the industrial tribunal considers it undesirable to adjudicate upon the application for a review pending the hearing of the appeal, the appropriate practice is for him to consult the Registrar of the Appeal Tribunal as to the most convenient course. Time for appealing from the industrial tribunal's decision runs from the date of the decision notwithstanding the application for review."
Time limits are very strictly applied both in industrial tribunals and in the EAT. Thus it is common for a Notice of Appeal to be filed at the EAT although application has been made for a review. In those cases no further action is taken on the Notice of Appeal pending the hearing of the review unless the learned Chairman indicates that the appeal should proceed. If a review is granted and the order is varied then the Notice of Appeal is usually withdrawn and ceases to have effect. It is simply to protect the running of time that it is filed. That situation is very different from the present where both this Court and the Court of Appeal are higher Courts of Record and where there are clearly substantial points of appeal.At the end of submissions both parties before us were unanimous in submitting that if no review was going to take place and the decision was not to be set aside, then it would be wrong to make any alteration or correction to the judgment as it now stands. Neither side would urge that and indeed it would be in our judgment wrong to make any alterations as criticism can freely be made in the Court of Appeal of such errors as exist.It follows for the reasoning above that we refuse this application and it is dismissed.