Lilthurst Ltd (t/a Breezevale Services Ltd) v Paul [1993] UKEAT 739_92_0211

EAT
Lilthurst Ltd (t/a Breezevale Services Ltd) v Paul
[1993] UKEAT 739_92_0211 · 1993-11-02
MR JUSTICE KNOX : This appeal is brought by Lilthurst Ltd trading as Breezevale Services ("the Company") primarily against a decision of the Industrial Tribunal sitting at London South on 7th August 1992 refusing an application on behalf of the Company to grant an adjournment in order to enable a witness, Mr Joseph Jaoude, to be called on its behalf. The hearing before the Industrial Tribunal had by then already lasted seven days in addition to the 7th August consisting of two days in June (the 25th and 26th) and five in July from Monday 27 July to Friday 31 July. The proceedings were of very great importance to both sides, the Company and the applicant Mrs Paul (née Marr) and it was clear from the outset, would turn on the truthfulness of the principal witnesses on either side, Mrs Paul on the one hand and Mr Habib Abou Habib ("Mr Habib") and, had he given evidence, Mr Joseph Jaoude on the other hand. Mrs Paul claimed that she had been constructively dismissed by the Company after she gave evidence in the course of American proceedings between the Company and Firestone Inc. that she had at the instigation of the Company prepared bogus documents in order to support the Company's claim against Firestone Inc. that the latter had been in breach of an exclusive licence agreement in favour of the Company for the sale of tyres to (inter alia) Iraq. The Industrial Tribunal in its decision sent to the parties on the 3rd September 1992 held that Mrs Paul was indeed, as she claimed, constructively dismissed and stated that the issue before it was a simple one, did Mrs Paul on 16th October 1991 commit perjury when she disclosed in a deposition to American lawyers in litigation between the Company and Firestone Inc. that the Company had during 1991 created documents purporting to have been written during 1987 so as to create the impression that during 1987 the Company was using its best endeavours to carry on the business of selling Firestone tyres to Iraq when in fact the Company regarded the potential for such business as nil and did not pursue it. Equally correctly, the Industrial Tribunal went on to say that the unravelling of the facts relating to this issue was far from simple.It is not necessary to go into the complexities of those facts for the purposes of this judgement but it will suffice to say that the fabrication of documents, in which Mrs Paul claimed to have been involved, was on her account an operation in which Mr Joseph Jaoude was personally involved. The Industrial Tribunal was therefore right to describe him, as it did, as a vital witness.Since the claim by Mrs Paul was that she was constructively dismissed, it was for her to give evidence first and this she did after a relatively brief opening by Mr Treverton-Jones on her behalf. Her evidence started on the 25th June and continued through the next day and the first day of the resumed hearing on the 27th July, finishing on the 28th July, after which Mr Treverton-Jones indicated that there was one more witness to come for Mrs Paul, Mr Byam-Cook. His evidence was interposed on Thursday 30 July between witnesses for the Company. The great majority of Mrs Paul's time in the witness box was spent in cross-examination.Both parties had appreciated before the hearing before the Industrial Tribunal started on 25th June 1992 that the two days then available would not be sufficient. The solicitors for the Company warned the Industrial Tribunal that this was their view on the 18th June 1992 and shortly after Mrs Paul instructed solicitors on Monday 22nd June (having previously acted in person) the Company's solicitors on the 24th June applied for a continuous 5 day hearing reporting the agreement of Counsel on both sides that 5 days would be needed and making a joint application to vacate the hearing dates on the 25th and 26th June. The application was not successful (no complaint is made of that) and so the hearing started on the 25th June. The Company's witnesses, including Mr Joseph Jaoude were available in London on those two dates. By lunch-time on the 26th June the necessity for an adjournment was looming and very sensibly a discussion regarding available dates for the adjourned hearing was held. Mr Ellis for the Company made it clear that certain witnesses would not be available for the week 27 to 31 July which was in other respects a period convenient both to the members of the Industrial Tribunal and to Counsel on both sides. Although the transcript of the hearing does not record this beyond a mention "(Discussion as to future timing)" Mr Treverton-Jones very properly told us that he confirmed that Mr Ellis did indeed tell the Industrial Tribunal that one or two of his witnesses would not be available between 27 and 31 July 1992. The adjournment to the 27th July, which was decided upon, was therefore made in the knowledge that one or two of the Company's witnesses would not then be available and that there would have to be a further hearing.Shortly before the resumption on the 27th July, for some unexplained reason, the Industrial Tribunal notified the parties on 23 July 1992 that an application for the postponement of the hearing on the 27th July, which neither party had in fact made, had been granted. this naturally came as a surprise to the parties, and the solicitor to the Company joined with Mrs Paul's solicitor in getting the postponement withdrawn. This is only relevant to one of the reasons later given for refusing the adjournment requested on 7th August by the Company, that the Company was seeking to delay matters.When the Industrial Tribunal resumed its hearing on 27 July, Mr Ellis again raised the unavailability between 27 and 31 July of three of his witnesses naming them as including Mr Joseph Jaoude. Mr Ellis said of the latter that it had proved impossible to alter the arrangements, for example Mr Jaoude was in the Lebanon where his Canadian family had come to join him. Although there was some discussion about available dates no decision was reached at that stage about further dates for hearing. Similarly on Tuesday 28th July the unavailability of Mr Joseph Jaoude and another witness Mr Awit during that week was mentioned and the Chairman, having been reminded of what had been said earlier about this unavailability, asked whether it would not be possible to bring them over so as to complete the hearing on 31st July 1992. Mr Ellis said enquiries would be made. The Chairman's notes for that day include this:
"Mr Ellis and Mr Treverton-Jones - seems that those dates agreed on basis of the witnesses not being available - Chairman accepts this but the Tribunal does not wish to postpone until November 1992."
The subject of Mr Jaoude's unavailability was again mentioned on Thursday 30th July at the outset of the day's hearing before Mr Byam-Cook was interposed. Mr Ellis informed the Industrial Tribunal that his clients had been unable to contact Mr Joseph Jaoude at all and that he was going to have to ask for the matter to be adjourned in order that his evidence could be given. The transcript records the Chairman saying:
"Well then, Mr Ellis, subject to anything anyone wants to do I would be very minded that it be one day next week or the week after. I feel that Mr Jaoude is a man with a telephone available, if he is anything like the picture we have of him."
Mr Ellis is recorded as saying:
"We have got to hope to get in touch with him. Yesterday, for example, there was a strike so we could not even phone. But the position is, Madam, that is(sic) his holiday is next week as well, so we have somehow got to be able to get in contact with him. We will do our very best."
To which the Chairman replied:
"Friday would give him masses of time, he could fly back on Thursday afternoon and he could go back on Friday afternoon, so that is not a problem."
It was no doubt that sanguine view of things that inspired the note which the Chairman made:
"Mr Jaoude is on holiday in Lebanon - he can be here on 7th August 1992 - Mr Awit will be here tomorrow by 2 p.m."
So far as Mr Awit was concerned that was accurate. He was flown back from Nigeria by the Company to give evidence. So far as Mr Joseph Jaoude is concerned the Chairman's note is wrong in recording a firm commitment that he could be there on 7th August 1992.The evidence of efforts made to get Mr Joseph Jaoude back to give his evidence consisted of an exchange of telexes between the Company's London office and its Beirut Office. At 10.51 a.m. on Wednesday 29th July the London office telexed the Beirut office as follows:
"Please try to contact Mr Joseph and ask him to be ready to come to London at short notice if needed. Can he please keep in touch with the London office to find out when he has to come."
The reply at 11.27 a.m. the next day, 30 July, was as follows:
"JAJ is away since Tuesday. Have tried to find a way to inform him about your request, but in vain. After having passed to his house we have been told that they went to the mountain(sic) and he might be back end of next week."
On Monday 3 August the London office inquired again.
"We refer to your telex of 30 July 1992. Can you please advise if you have been able to contact Mr Joseph yet? Please advise a.s.a.p."
On Tuesday 4 August the reply came:
"I tried my best to reached Mr JAJ but in vain. Will inform you as soon as we get any news from him."
By the end of the hearing on Thursday 30 July 1992 all the oral evidence from Mrs Paul's side had been given and cross-examined and so had the Company's evidence with two important exceptions besides Mr Awit who was to give evidence next day. They were Mr Joseph Jaoude and also a Miss Khouri. She was potentially an important witness in that the Company's case was that she had typed out in Beirut in 1987 the documents which Mrs Paul claimed were forgeries but which the Company claimed to be genuine. Mr Ellis on 30 July 1992 proposed at first to hand in Civil Evidence Act notices including one in respect of Miss Khouri. The Chairman queried the use of a Civil Evidence Act notice in relation to such an important witness and after discussion of the Civil Evidence Act and its effect on the Industrial Tribunal Mr Ellis reserved his position regarding Miss Khouri saying that he did not intend to seek that day to adduce her evidence because if it was possible or desirable to do so he would call her on August 7th. If it was not possible he would apply to have her statement admitted.On Friday 7th August 1992 Mr Ellis applied for an adjournment to enable Mr Joseph Jaoude's evidence to be taken. He pointed out the way in which the hearing dates 27 July to 31 August were fixed in the knowledge that Mr Joseph Jaoude might not be available. He also corrected the statement he had earlier made on 27 July that Mr Joseph Jaoude would be on holiday with Canadian relatives to a statement that the relations in question were his wife and family whom he had sent to Canada to avoid the troubles in the Lebanon. At this point the transcript records the Chairman of the Industrial Tribunal as saying:
"Mr Nicholson's face becomes more and more unbelieving in his own submission, but there we are. I watch everybody's face you know. But keep going."
Mr Nicholson was the solicitor acting for the Company. The relevance of this intervention appears below in connection with the reasons given for refusing the application to adjourn.That application was opposed by Mr Treverton-Jones on Mrs Paul's behalf. His submissions were as follows.First, that Mr Jaoude was not on holiday on Monday 27 July and could have come to London that day and been interposed. That submission was based upon the telex quoted above from the Company's Beirut office dated 30 July saying that Mr Joseph Jaoude was away since Tuesday, which was the 28th, from which Mr Treverton-Jones deduced that he was not on holiday on the 27th July. Secondly, he submitted Mr Joseph Jaoude's holidays could have been re-arranged given the amount of money the Company was prepared to spend and had spent on the case. Thirdly, he submitted that the telexes were inadequate evidence that efforts had really been made to get in touch with him over the preceding two weeks so that evidence of his inability to be present was unsatisfactory. Fourthly, he submitted that the interests of justice demanded a swift resolution of the matter and that if the matter went off it would have to go to December. Finally, he said that the patience of Mrs Paul's new employers who up till then had treated her time at the Industrial Tribunal as part of her working hours, was wearing thin and that the strain upon her was great. The Chairman elicited that Mrs Paul's costs already incurred were in excess of £10,000 but it was agreed between Counsel that there was no jurisdiction to impose as terms of an adjournment a provision for payment or securing costs already incurred, as opposed to costs wasted by the adjournment, if granted.The Industrial Tribunal refused the application for an adjournment and gave its reasons for doing so orally on the same morning.The Industrial Tribunal set out the principal issue in the case before it and the history of the hearing to date saying that the issue ultimately had been one of who had been speaking the truth, whose motivation was honest and where the bona fides lay. The first point taken in the Industrial Tribunal's reasons for refusing the adjournment requested was that no indication was given until that day 7th August that Mr Joseph Jaoude was actually present in London on 25th/26th June and that an application could have been made on behalf of the Company to interpose Mr Jaoude to give his evidence on the afternoon of the 26th June. This was a point which had been put to Mr Ellis while he made the application for an adjournment. Mr Ellis had at that stage made the point that Mrs Paul was under cross-examination and that it was inappropriate to interpose a witness of such significance and that it was highly doubtful whether Mr Joseph Jaoude's evidence could have been completed in the afternoon of the 26th August.We are satisfied that it would have been totally impracticable to seek to interpose such a critical witness in the middle of Mrs Paul's cross-examination which started soon after the beginning of the second day's hearing and went on until the morning of the 28th July, the fourth day of the hearing. Mr Treverton-Jones did not rely upon this possibility in opposing the adjournment before the Industrial Tribunal nor did he support it before us and we have no doubt that he was entirely justified in that attitude. We can see no proper basis for criticising the conduct of the case on behalf of the Company on this ground. The much later interposition of Mr Byam-Cook as a witness, to which the Industrial Tribunal referred, is not comparable because he was a much less significant witness and as regards his evidence there was no such critical flat contradiction upon central factual issues as there was between Mrs Paul's evidence and what Mr Joseph Jaoude could be expected to say.The next point made in the Industrial Tribunal decision is the one which raises the most important single issue in this appeal. The decision under appeal includes this passage:
"The hearing was adjourned until 27th July. It then proceeded until the 31st July - a full week. During that week the Tribunal had the opportunity to hear the most important witnesses for the Respondent and to finish off the Applicant's case - the evidence of one of their witnesses being interposed.
So, during that week with the documents and the evidence that they heard the Tribunal had an excellent opportunity to form a view as to whom they thought was telling the truth."Mr Treverton-Jones, rightly in our view, accepted before us that this, and other passages in the Industrial Tribunal's decision and indeed in the interlocutory observations from the Chairman while Mr Ellis was making his application for the adjournment, establish that the Industrial Tribunal was saying in terms that it had at that stage made up its mind which side was telling the truth. How far it was proper for it to do so at that stage of the hearing is a question to which we shall return.The next matter dealt with was the question of Miss Khouri's evidence. Mr Ellis in applying for the adjournment had made it clear on the 7th August that he was not seeking an adjournment to enable Miss Khouri to come and give oral evidence, but no question was put to him on this aspect of the matter before the reasons for refusing the adjournment for which he asked were given. Those reasons did include the following:
"Miss Khouri apparently has been dropped by the wayside by the Respondents. They do not seem to want her here although it is quite clear her(sic) that her evidence, if they wanted to call it, would be vital because part of their case so far was that it was indeed Miss Khouri who typed these documents in the Lebanon and certainly as of 31st July when this case was adjourned, she was fit, alive and well and working for Mr Jaoude in the Lebanon."
Later in the decision came the following passage:
"If Miss Khouri had been here giving evidence, that might have added some force to the application that is made to adjourn. Her absence is significant and indicates to the Tribunal that she may yet be another witness who is less willing to tell lies on behalf of the Respondents than would otherwise appear."
Once these points were made in the course of the giving of the Industrial Tribunal's decision refusing the requested adjournment, Mr Ellis for the Company was in a position to deal with them, and did so, saying that she did not have a current passport, which together with a visa would take three to four weeks to obtain, and that her husband was not happy that she should travel to England. The Company's advisers had therefore decided not to call her and instead intended to put in a statement under the Civil Evidence Act. Whether or not the Industrial Tribunal would have regarded those reasons as adequate is less significant than that it was prepared to draw significant adverse inferences from the failure to call Miss Khouri without giving Mr Ellis any opportunity of dealing with the matter or in any way indicating to him that it was likely to be treated as a significant factor in deciding whether or not to grant the adjournment that was requested. It is to be borne in mind that Mr Treverton-Jones had not mentioned Miss Khouri's absence as a ground for refusing the requested adjournment to call Mr Joseph Jaoude. He did however submit to us that what the Industrial Tribunal said about her was factually correct.Somewhat less important matters mentioned in the Industrial Tribunal's decision to refuse an adjournment were the fact that Mr Habib was conspicuous by his absence that day, the change in what was said regarding Mr Joseph Jaoude's relatives from Canada to his wife and family residing in Canada and the fact that Mr Nicholson, the Company's solicitor, had been placed in the invidious situation by those instructing him of sending telexes to the Lebanon office and getting replies. In fact as the copy telexes show on their face it was not Mr Nicholson but the Company's London office that sent the telexes and the change regarding Mr Joseph Jaoude's Canadian relatives was not important on any view. So far as Mr Habib's absence from the Industrial Tribunal on the 7th August is concerned, we are unable to see why the Company should be blamed for that nor did Mr Treverton-Jones address any argument to us on that point. As for the slight inaccuracy regarding the Canadian factor concerning the relatives accompanying Mr Jaoude on his holiday, if and to the extent that the Chairman's intervention regarding the expression on Mr Nicholson's face formed a factor in the Industrial Tribunal's decision that the application for an adjournment was not made bona fide, it seems to us totally inappropriate. What had happened was that Mr Ellis had misunderstood his instructions, as he told the Industrial Tribunal immediately before the Chairman's intervention was made, and to conclude from his instructing solicitor's facial expression that the latter did not believe in the submissions being made on his client's behalf seems to us wholly unjustified. However we do not attach any great weight to this aspect because it is intrinsically of little importance and does not appear to have figured largely in the Industrial Tribunal's decision.More important is the finding in the Industrial Tribunal's decision that it was quite satisfied that it had been misled about Mr Joseph Jaoude's being away for the whole of the week starting the 27th July, that he could easily have been with the Industrial Tribunal that day and flown back to the Lebanon that day. This was all founded on the deduction that the telex which stated that he was away since Tuesday 28th July showed that he could have been in London on the 27th. Mr Treverton-Jones accepted before us that this was not in fact so but he submitted that it was a legitimate deduction for the Industrial Tribunal to make on the documents before it.The Industrial Tribunal's decision to refuse the adjournment was principally based on the following findings:a) That the case was one of attrition - the Company being vastly more wealthy than Mrs Paul and having spent very large sums in conducting the proceedings.b) That the Industrial Tribunal had formed the view on the 31st July in adjourning to the 7th August that it was in the interests of justice that the hearing be completed on the 7th August.c) That Miss Khouri was not called in person.d) That the Industrial Tribunal had been misled as to Mr Joseph Jaoude's availability on July 27.e) That it had always been easy for Mr Habib to get in touch with Mr Joseph Jaoude.f) That the application for an adjournment was not a bona fide application to get a witness but was an application to delay the proceedings.The parties made their closing submissions in writing and Miss Khouri's statement under the Civil Evidence Act was handed in. No further oral evidence was taken.It was accepted by Mr Serota on behalf of the Company that the decision whether or not to grant an adjournment was one which was within the discretion of the Industrial Tribunal and that this was not a case in which it could be said that there was only one way in which on the evidence the Industrial Tribunal could properly exercise that discretion. What was submitted was:a) that the decision to refuse the adjournment sought was flawed in that factors were taken into account which should not have been taken into account, notably the absence of Mr Habib and Miss Khouri and the inferences drawn therefrom, and the findings that Mrs Paul's evidence was to be believed and the Company's witnesses were not to be believed;b) that the finding of mala fides in making the application for the adjournment was not justifiable on the evidence before the Industrial Tribunal;c) that the Industrial Tribunal was guilty of bias in the sense that a reasonable and fair minded person sitting in Court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial was not possible in that the Industrial Tribunal had reached and stated its final conclusion on the facts before the Company's counsel had made his closing submissions and without hearing the vital witness Mr Joseph Jaoude.Counsel on each side made conflicting submissions regarding the law on the role and powers of the Employment Appeal Tribunal in relation to exercises of discretion vested in an Industrial Tribunal. For the Company Mr Serota submitted that the test was whether the decision making process was shown to be flawed as a matter of law and if it was the decision should be set aside unless it could be shown that the decision made was the only one which a properly directed Industrial Tribunal could have made in which case the decision should be upheld. He referred to Dobie v. Burns International Security Services (UK) Ltd [1984] I.C.R.872 in which the Court of Appeal held that where there had been a misdirection in law by an industrial tribunal, the appeal tribunal had to consider not whether the decision of the Industrial Tribunal was plainly wrong but whether it was clearly and unarguably right notwithstanding the misdirection. Dobie v. Burns , supra, was concerned with the substantive decision whether or not there had been an unfair dismissal and not as here with an interlocutory decision such as a decision whether or not to adjourn. The same test has however been held to be applicable to interlocutory decisions as to final decisions so far as the reviewing powers of the Employment Appeal Tribunal are concerned. See Adams v. West Sussex County Council [1990] I.C.R.546 . To the same effect is Bastick v. James Lane (Turf Accountants) Ltd [1979] I.C.R.778 an appeal against a refusal of an adjournment in which at p.782 Arnold J. said:
"Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
Mr Treverton-Jones made two submissions which conflict with the submissions of Mr Serota.First, he emphasised the use of the word "entitle" in the passage from the judgement of Arnold J. quoted above and submitted that there was vested a discretion in this appellate tribunal whether or not to interfere with an exercise of discretion in the Industrial Tribunal. Secondly, he submitted that it was only if we were satisfied that the decision below was plainly wrong that we should interfere. We are not satisfied that either of those two submissions is valid. We do not accept that Arnold J. intended to convey that the Employment Appeal Tribunal had a discretion whether or not to interfere with the decision below. Such a decision either involves an error of law, in which case it is the duty of this tribunal to interfere unless satisfied that the decision is plainly right notwithstanding the error in law or it involves no error in law, in which case this Tribunal has no power to interfere. There is in our view no half-way house in which an error of law confers a discretion on this tribunal whether or not to interfere. No doubt some errors in law are too small to warrant disturbing the decision but that is not the same point. An appellant is either entitled to succeed or the respondent is entitled to have the appeal dismissed on any particular issue.The second submission of Mr Treverton-Jones that Bastick v. James Lane (Turf Accountants) Ltd , supra, is distinguishable on the ground that it was concerned with a final decision of the Industrial Tribunal whereas the present appeal is from an interlocutory decision and that we should only interfere if satisfied that the Industrial Tribunal was plainly wrong, is irreconcilable with the decision in Adams v. West Sussex County Council , supra, which we regard as correct in principle and one which we should follow. In our view the Industrial Tribunal had material before it which could have been held to justify the grant or the refusal of the requested adjournment. In other words the evidence was not such that any properly constituted Industrial Tribunal could only reach one conclusion whether to grant or refuse the adjournment. But we are satisfied that the Industrial Tribunal's decision to refuse the adjournment was flawed in that three matters were taken into account which ought not to have been taken into account, the absence of Mr Habib on the 7th August 1992, the decision not to call Miss Khouri as a witness as indicative of the fact that she was unwilling to tell lies in evidence and the fact that the Industrial Tribunal had definitively made up its mind before hearing Mr Joseph Jaoude that any evidence he gave contrary to that given by Mrs Paul would be untrue. Moreover we do not consider that there was any evidence from which the Industrial Tribunal could properly conclude that the Company's application for an adjournment was made mala fide and in order to delay matters.We should add that Mr Treverton-Jones referred us to G v.G [1985] 1.W.L.R.647 in support of the proposition that we should only interfere if satisfied that the exercise of the discretion below was plainly wrong. We do not consider that that authority is of significant help in the case before us because it was dealing with the situation, sadly prevalent in family matters, where a choice has to be made between two or more unsatisfactory solutions. In those circumstances the fact that one judge might prefer one possibility and another judge another possibility is not sufficient ground for an appellate court to interfere with the exercise of the discretion below.Upon the other issue regarding what is called bias, although the word is not used in the colloquial sense but in the technical sense described above, there was no significant dispute regarding the law to be applied. Mr Treverton-Jones did not challenge the statement of principles by Sir Thomas Bingham M.R. in Arab Monetary Fund v. Hashim unreported 28th April 1993 when he said:

" Reasonable suspicion of bias

The overriding principle, rightly described as "transcendent" by Edmund Davies LJ in Metropolitan Properties Co (FGC) Ltd v. Lannon [1969] 1 QB 577 at 604F is that classically stated by Lord Hewart CJ in R V. Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259 :
"justice should not only be done but should manifestly and undoubtedly be seen to be done."
This broadly stated principle covers the familiar rules of natural justice, that a person should not be judge in his own cause and that a person should not be the subject of adverse judicial decision without an opportunity to state his case.............. ....Lord Hewart's rule clearly covers the case, happily very rare, where a decision maker approaches a case with his mind apparently prejudiced by considerations, perhaps based on some ethnic or generic stereotype, unrelated to the facts of the case in question. And it also covers the case where a decision maker apparently closes his mind and reaches an immutable decision before the stage at which he can properly do so. All these may, depending on the facts, give rise to a reasonable suspicion of bias, that is to a reasonable apprehension in the mind of a reasonable, informed and neutral observer that the decision-maker may not decide the dispute before him on its legal and factual merits."and a little later he said:
"But on the whole the English tradition sanctions and even encourages a measure of disclosure by the judge of his current thinking. It certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind. But a judge does not act amiss if, in relation to some feature of a party's case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be."
Those observations were not concerned with proceedings before Industrial Tribunals but they are in our view of general application. More specifically directed at Industrial Tribunal proceedings are the words of Peter Gibson J. in Peter Simper & Co v. Cooke [1986] I.R.L.R. 19 at 21 where he said:
"We take it to be axiomatic that justice before a Tribunal must not only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a Tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain an impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."
The issue here is not whether those statements accurately state the relevant law but whether the proceedings had advanced to a point where the Industrial Tribunal could properly express its concluded view on the question which side's version of events was truthful. It is clear that matters had progressed far beyond the stage reached in the Peter Simper case, supra, where the remarks of the Industrial Tribunal Chairman, which were held to be indicative of bias in the technical sense, were made during the cross-examination of the witness for the first side to give evidence and before the other side's evidence had been embarked upon. Mr Treverton-Jones grasped the nettle and submitted to us that the Industrial Tribunal was entitled to give effect to a concluded view on the question who was telling the truth seeing that it had the whole of Mrs Paul's evidence including cross-examination and re-examination and had heard the oral testimony of such witnesses as the Company called. What remained was Miss Khouri's evidence in the shape of a Civil Evidence Act statement and Mr Joseph Jaoude's evidence, if he was called. At that stage Mr Treverton-Jones submitted that the Industrial Tribunal could not be faulted for having decided that Mrs Paul was a witness of complete truth as was Mr Byam-Cook and that the documents supported them.We have, albeit regretfully having regard to the dire consequences of our decision, come to the conclusion that the decision of the Industrial Tribunal did infringe the principles which prohibit the premature expression of a concluded view on the facts of a case. Where the issue to be decided is whether or not to permit an adjournment in order to allow evidence to be called from a vital witness on one side it is premature to conclude definitively that any evidence that witness might give which was in conflict with that of a witness who has already been called on the other side and cross-examined would be false and to rely upon that concluded view as a justification for refusing an adjournment thus effectively shutting out that evidence. The stage for definitive conclusions on fact is when all the evidence has been called and the parties have made their submissions. To say that all the evidence had been called in the present case involves begging the question whether or not Mr Joseph Jaoude's evidence should be excluded. Moreover no submissions had been made on behalf of the Company.The costs incurred to date are depressingly large, greater so far as Mrs Paul is concerned than the amount at stake, regard being had to the statutory limit upon awards for unfair dismissal. But that is not a consideration which entitles us to reach any different conclusion from that which but for the amount of the costs we should have reached.The parties were agreed that if we concluded that the appeal against the decision to refuse an adjournment was allowed we should remit the case for hearing before a differently constituted Industrial Tribunal. That is the order which we make.