Troughton v Civil Aviation Authority [1993] UKEAT 318_92_1501

EAT

Troughton v Civil Aviation Authority

[1993] UKEAT 318_92_1501 · 1993-01-15

MR JUSTICE KNOX: Mr Troughton appears before us to appeal from a decision given by the Industrial Tribunal sitting at Brighton on the 2nd and 3rd March 1992 whereby they held that there was no unlawful deduction made from Mr Troughton's wages contrary to the Wages Act 1986.

The point that arose regarding his wages was, briefly, that he was found not to be entitled to increments that he claimed on the basis of assessments on his performance. There was an established system whereby if there were three consecutive assessments in the second of several boxes that were available for the Assessing Officer, the Box 2 as they were called, were obtained, and the necessary amount of service was present, there was a right to an increment in the performance range. The issue arose on whether the change in the system that did occur was one which was binding on Mr Troughton. It is not necessary to go into the details of that because of the nature of the appeal that Mr Troughton brings before this Tribunal and that is this. There are, in his Notice of Appeal, two grounds of appeal both on the basis of irregularities which took place, he claims, in pre-trial and trial procedures. One deals with pre-trial procedures, the other deals with what happened at the trial. Dealing with them in order, the first was what he describes as "failure to afford reasonable disclosure".

There was an interlocutory hearing before a Mr Starkie at the Brighton Industrial Tribunal on the 27th January 1992 when Mr Troughton applied for an Order for Discovery of the files of the Respondent, the Civil Aviation Authority, containing information on the performance related pay scheme, which was the central issue to the case. Mr Troughton records in his Notice of Appeal that Mr Starkie rejected the application for that Order on grounds that Mr Troughton criticises. Now, whether Mr Troughton was right to criticise that decision or not is I am afraid, now, a point of academic interest because there was an Order made in an interlocutory application and if that Order is one which the party concerned wishes to challenge and is dissatisfied with, the remedy of that party is to appeal that Order, and that did not happen. Indeed, the question of failure to give proper discovery was present to Mr Troughton's mind when the full hearing came but, for reasons that seemed good to him at the time, he refrained from making any objection on this score to the Industrial Tribunal when it heard the substantive application on the 2nd and 3rd March 1992. That, sadly for him was a fatal error, if and in so far of course, as to which I say nothing, as he had a good case for claiming that inadequate discovery had been given. We are not making a ruling one way or the other about that. The fact of the matter is that there was an Interlocutory Order which was not appealed and it is too late to seek to appeal an Interlocutory Order after the trial has occurred.

The procedural point at the trial arises in this way. Mr Troughton says:

"The Respondent [the CAA] suddenly produced as evidence `side letters' on the final day, fifteen minutes before the hearing was due to commence.

and they, he claims, had an important bearing on the Tribunal's decision and he says:

"this tactic on the part of the Respondent prevented me from having sufficient time to consider and adequately respond to this late and new evidence."

Again, I am afraid that what happened was that Mr Troughton made an error of tactics, in that he did not apply for an adjournment and Mr Troughton does in fact, implicitly accept that that did not happen because even in his Notice of Appeal (he accepted it as a matter of fact, very frankly before us in argument) he said this:

"As a litigant in person, I am advised that it was the Chairman's responsibility to either offer an adjournment or to have refused to admit this evidence at such a late stage of the proceedings."

That, I am afraid is very severely overstating the responsibilities of the Chairman of the Industrial Tribunal. Chairmen, habitually, try to give such help as they can, properly, to litigants who appear without legal representation and Mr Troughton, who is not a lawyer, was in that position and he was faced with Counsel for the Civil Aviation Authority so he was, in that respect, at a practical disadvantage. There is not, however, on any possible view, a duty on industrial tribunal chairmen positively to conduct the case on behalf of a party who has no legal representation. How much is done to help them get over the difficulties they encounter, as a result of their lack of legal training and experience, is a matter for judgment by the Chairman of the individual industrial tribunal and for this Tribunal, which only has jurisdiction to deal with questions of law that arise on hearings before the industrial tribunal to interfere, there has to be conduct on the part of the chairman of the industrial tribunal which amounts to a denial of justice to one or other of the parties. Fortunately, that is a state of affairs that very seldom happens. But it would have to be shown to our satisfaction in this Tribunal that the chairman was very seriously at fault in failing to volunteer the offer of an adjournment when no adjournment was actually asked for, for us to interfere, and that is quite out of the question. It would impose an impossible burden on chairmen of industrial tribunals if they had to foresee and analyse every possible step that could be asked for by one or other of the parties before them.

In those circumstances we are satisfied that there is not any material upon which this appeal could usefully go forward to a full hearing and we propose, therefore, to dismiss it. We should mention that Mr Troughton raised at the hearing something which is not mentioned at all in the Notice of Appeal and upon which we make no finding at all, that was that there was an application by him for a review on the basis of new evidence. That review was refused but it is not mentioned in the Notice of Appeal and we therefore do not propose to deal with it on this occasion.