Indrayen v Delaney & Anor [1993] UKEAT 724_91_1210

EAT
Indrayen v Delaney & Anor
[1993] UKEAT 724_91_1210 · 1993-10-12
MR JUSTICE KNOX: This is an adjourned preliminary hearing of an appeal by Mr Indrayen against a decision of an Industrial Tribunal sitting at London (South) on the 19th July 1991 which dismissed Mr Indrayen's Originating Application and ordered him to pay £250 by way of costs.The matter originally came on the preliminary hearing, pursuant to the new procedure listing direction, on the 21st December 1992 before Mr Justice Wood and Mr Batho and Mr Gladwin. On that occasion the Employment Appeal Tribunal dealt with the several matters that were set out in Mr Indrayen's Notice of Appeal, with one exception, and the exception appears from the Order that was then made, the operative part of which reads:
"THE TRIBUNAL ORDERS that the Appeal be dismissed except in regard to the issue of whether or not the Appellant was not allowed to cross-examine Mr John Delaney and that on that issue only this preliminary hearing be adjourned to a date yet to be fixed . ."
I need not read the rest of that.What Mr

Justice Wood said in the course of his judgement does not add very much to that - it is this:

"So that the decision is that we reject the five other points which we hope we have mentioned in detail but that we adjourn this preliminary hearing on that one particular point as to whether or not the Applicant was not allowed to cross examine Mr Delaney. We are conscious of the contents of paragraph 12 of the decision and it may be that that, in part, explains some of the problems which faced the Industrial Tribunal but we would be grateful if the learned Chairman would give us his views on that matter. This case is therefore adjourned on that one issue."
and the learned Chairman has, in response to that invitation, written in in answer to that judgement a letter dated the 23rd March 1993 addressed to the Registrar of this Tribunal which in the operative paragraph, which is the second paragraph, says:"To answer the query raised by the Appellant as to his cross-examination of Mr John Delaney and the last paragraph of the learned President's judgement I have checked my manuscript notes of the hearing. I confirm that I have noted approximately one and a half pages under "xxd" (my usual heading for cross-examination). Some of the answers from the witness refer to "you" - i.e. they are replies to direct questions from the Appellant - and so I cannot accept the Appellant's assertion that he was not allowed to cross-examine at all (if that is what he is asserting).I agree that I may have confined the scope of the cross-examination to the jurisdictional issues which troubled us. I am sorry if the Appellant feels that my manner was taunting but I do recall some difficulty in persuading the Appellant to confine himself to relevant matters."Mr Indrayen received that communication from the Chairman and the bundles that are before this Tribunal and he wrote a letter to this Tribunal dated 3rd October 1993 in the course of which he said this:
"I have once again gone through the enclosed set of papers and sorry to inform you that I have not found any copies of I.T. Chairmen's Notes of Evidence on either of cases/appeals in the set of papers enclosed therein by your office.
1.Under circumstances I once again request you to please obtain and send me the copies of I.T. Chairmen's notes on both the above cases.I may once again mention here in absence of copies of I.T. Chairmen's notes of Evidence and copies of full record of Proceedings of I.T. it will not be possible for me to prepare my case fully and present it on any forthcoming hearings at E.A.T."One of the two cases is the one which we are presently engaged with, the other one is to be dealt with later this morning and we say nothing about that at this stage.So there was there a request for the Chairman's Notes of Evidence and that was refused by a letter dated the 6th October by this Tribunal, on behalf of the Registrar, in a letter which said:
"Chairman's Notes of Evidence are sought in cases for the assistance of the Appeal Tribunal at the hearing: at the preliminary hearing, had the Appeal Tribunal deemed the Notes necessary for the full hearing doubtless they would have called for them then."
and with regard to this particular appeal:
"Regarding the appeal at EAT 724/91, [which is the one that we are presently dealing with] that is for a preliminary hearing and therefore the Appeal Tribunal will only consider then whether or not the Chairman's notes should be obtained provided they allow the appeal to go forward to a full hearing."
and before us this morning Mr Indrayen has maintained his position that without the Chairman's Notes he is not in a position to do more than say that he wants an opportunity of studying the Notes.We have given careful consideration to the issues raised by this claim by Mr Indrayen. It seems to us that the point turns purely on what the issue is before this Tribunal. It seems to us very clear that the issue is whether or not the claim that Mr Indrayen made in paragraph 6.6, the first thus numbered in his Notice of Appeal, viz:

"I was not allowed to cross examine Mr John Delaney."

is substantiated or not. As Mr Justice Wood observed, that point was not covered by the material before the Employment Appeal Tribunal on the first hearing.Now, whether there was cross-examination of Mr John Delaney, is in our view clearly settled because the Chairman has written in to say that there were a page and a half of his Notes that covered that aspect of the matter. It is important to distinguish between the issue that arises: Was Mr Indrayen allowed to cross-examine? which he was complaining he was not allowed to do, on the one hand and: what course did the cross-examination take, was it improperly contained, or what was the subject matter of the cross-examination? None of the latter are in issue, the issue is whether Mr Indrayen was allowed to cross-examine and the copy of a Chairman's Notes would not elucidate the question - was there a cross-examination allowed or not? - It might very well elucidate other questions such as - where did the cross-examination go? - what were the subjects covered by it? - were there checks put on Mr Indrayen in one way or another with regard to relevance or other matters? But that is not the case that Mr Indrayen put before this Tribunal, the case he put was "I was not allowed to cross-examine". We are satisfied that there was a cross-examination and that seems to us to be the only point at issue.In those circumstances we dismiss this appeal at this stage.