Gilbert v Portsmouth Publishing & Printing Ltd [1993] UKEAT 63_93_2604

EAT
Gilbert v Portsmouth Publishing & Printing Ltd
[1993] UKEAT 63_93_2604 · 1993-04-26

JUDGE J PEPPITT QC:

This is an appeal by the Applicant before the Industrial Tribunal, Mr Gilbert, from a decision of the Registrar refusing to order that the Chairman's notes of the hearing should be produced for use on the appeal.Mr Kibling, on behalf of the Applicant, submitted that those notes were necessary to enable him to advance two of the grounds upon which he relies in support of Mr Gilbert's appeal. Without the notes, he tells me, those grounds could not be advanced.The first ground is that the finding of fact made by the Tribunal in paragraph 30 of its decision was perverse in the sense that no reasonable tribunal could have reached it. Paragraph 30 of the Tribunal's decision reads as follows:
"We are satisfied from the evidence we have heard that the respondents' witnesses, Mr Hewitt and Mr Kennard, are quite correct when they state that it was the applicant who made the suggestion of early medical retirement, and this is confirmed by document 16, Mr Kennard's note of the meeting."
The evidence before the Tribunal was that at a meeting on the 7th October 1991 the Applicant had suggested that he should retire early from his employment on grounds of ill-health. That was the evidence which Mr Kennard gave and so important did he regard it that he called Mr Hewitt into the room and the Applicant said something substantially to the same effect in Mr Hewitt's presence. Mr Hewitt and Mr Kennard gave evidence to the Tribunal to this effect. The Applicant gave evidence that he had made no such statement. The Tribunal accepted the evidence of Mr Hewitt and Mr Kennard.Mr Kibling, on behalf of the Applicant, attacks that finding as perverse, substantially on the ground that Mr Kennard produced, and the Tribunal considered, a post hoc note of the meeting, the precise status of which is somewhat uncertain to me, save that it was a typescript prepared from a manuscript note which itself had been prepared some time after the meeting. It was not therefore a contemporaneous note. Mr Kibling says that this note, short as it was, could not possibly have included all that was said in the course of a meeting which lasted between 15 and 40 minutes. But it did include a short statement substantially to the effect of that attributed to the Applicant by Mr Hewitt and Mr Kennard. Against that background Mr Kibling argues that he requires the Notes of Evidence to persuade the Employment Appeal Tribunal that the Tribunal's finding, the effect of which was to accept the evidence of Mr Hewitt, Mr Kennard and Mr Kennard's note and to reject the evidence, and only the evidence, of the Applicant himself was perverse.The second area which Mr Kibling attacks for perversity is the finding appearing at paragraph 50 of the Tribunal's decision. In that paragraph the Tribunal found Mr Hewitt took the decision to dismiss the Applicant on the basis of Dr Langmaid's report. The finding goes on:
"At the same time, on 3 December, Mr Hewitt decided to employ on a permanent basis an employee, Lee Stanley, who had hitherto been temporarily employed initially on other duties, and then on the applicant's duties when he had become ill.

The letter dismissing the applicant was not sent to him until 10 December 1991."

So the chronology found by the Tribunal was as follows: firstly, Dr Langmaid's report, which was contained in his letter dated 13th November 1991 and which stated as follows:
"I have no doubt that Mr Gilbert should not return to a job which involves heavy and manual work, and that he should therefore retire on grounds of ill health."
Secondly, a joint decision on the 3rd December 1991 to dismiss the Applicant and to appoint Mr Stanley to do the work which he previously did. Thirdly, the letter of dismissal, a week later, on 10th December. Mr Kibling attacks the finding in paragraph 50 on grounds of perversity. He challenges the Tribunal's finding that Mr Hewitt took the decision to dismiss on the basis of Dr Langmaid's report and, in parenthesis, following a request by the Applicant that he should be retired on grounds of ill-health. The real reasons why this Applicant was dismissed were, he says, firstly that the Respondents wanted to get rid of him because there had been personality problems between him and other workers in the past and secondly, they could get Mr Stanley to do the same work at a somewhat lesser cost. Mr Kibling relies upon the fact that the existence of Mr Stanley did not emerge from the Respondents' evidence initially but came to light from a document which they disclosed before cross-examination took place. The Tribunal considered the document and came to the conclusion, in the light of all the evidence, that it was Dr Langmaid's report and only Dr Langmaid's report which was the trigger for the decision to dismiss the Applicant on the 3rd December 1991.In support of his submissions Mr Kibling referred me to the case of Webb v. Anglian Water Authority [1981] ICR 811, a decision of this Tribunal, when Mr Justice Browne-Wilkinson, as he then was, giving the decision of the Tribunal, in the course of his judgment laid down that only where permissible grounds for attacking the findings of the Tribunal were shown should the Chairman's notes be provided. The general rule was that those notes would not be made available for the use of the Employment Appeal Tribunal. Mr Justice Browne-Wilkinson specified a number of permissible grounds one of which was that a finding of fact made by the Tribunal is alleged to be perverse in the sense that no industrial tribunal properly directed could have reached the conclusion which it did. Mr Justice Browne-Wilkinson went on at page 814B in his judgment to say that it was not sufficient for an applicant simply to make generalised allegations of perversity; he must specify with some particularity the precise findings which on perversity grounds he seeks to attack. That Mr Kibling has certainly done and I have indicated the two findings which he challenges. But it seems to me that before exercising my discretion to put a Chairman of an industrial tribunal to the considerable inconvenience of dictating from his notes evidence given, in this case, over a hearing lasting for some three days I should satisfy myself not that the allegation of perversity will succeed, because without the notes I cannot possibly do that, but that there is an arguable ground upon which the findings specified might reasonably be attacked by reference to the notes. I am sorry to say that in neither case has Mr Kibling satisfied me that he can arguably attack the findings he challenges on grounds of perversity. His only basis for attacking the finding in paragraph 31 of the judgment was that Mr Kennard's post hoc note was suspect in that it omitted a number of things which must have been said in the course of a meeting lasting between 15 and 40 minutes. I have no doubt it did. I do not suppose for a moment that Mr Kennard sought to record verbatim what was said. As with most if not all notes the writer seeks to record what he or she considers to be important, and it seems to me that even if the notes were produced the prospect of the Applicant over turning a decision of the Tribunal preferring the evidence of two witnesses and a note to that of the Applicant alone in circumstances where in the course of the decision the Applicant's evidence was rejected in a number of areas seems to be so remote as to be disregarded.Secondly, as to paragraph 50 of the judgment, the finding that the decision to dismiss was taken on the basis of Dr Langmaid's report, was made by the Tribunal after hearing a great deal of evidence on both sides and after consideration of the report itself, which was wholly consistent with the decision which the Respondents took a fortnight or so later. In my judgment Mr Kibling has established no arguable ground that this finding was perverse or might be shown to be perverse by reference to the Chairman's Notes. Notes can do no more than record what people said; they cannot indicate how they said it or what impression a witness made on the Tribunal. It seems to me therefore that it would be a waste of the Chairman's time, would incur unnecessary expense and would unduly prolong this appeal were I to order that these notes be produced.In the circumstances, in my judgment, the Registrar was right and this appeal must be refused.