Hipgrave v Markey (t/a Aviary Supplies) [1994] UKEAT 467_92_0305

EAT
Hipgrave v Markey (t/a Aviary Supplies)
[1994] UKEAT 467_92_0305 · 1994-05-03

JUDGE HULL QC :

In this case Mr C J Hipgrave whose appeal this is, was one of two applicants to the Industrial Tribunal which sat on 6 February 1972 to hear complaints by both gentlemen that they had been unfairly dismissed. Mr T Hipgrave (his son) was the other Applicant; his case was quite different but the cases were heard together. So far as Mr C J Hipgrave was concerned, the only issue was the question whether he had been dismissed; Mr Markey, the Respondent, said that he had not in fact been dismissed.The Tribunal heard both Mr C J Hipgrave and Mr T Hipgrave. As the burden was on Mr C J Hipgrave to show that he had been dismissed, he began. The father and son had a witness, a Mrs Toll, ready to give evidence. At the conclusion of their evidence the Chairman, according to his recollection which is contained in a letter of 10 July 1992 written to this Tribunal, proceeded as follows. He said:
"When I raised the question of whether or not the applicants wished to call further witnesses after the luncheon adjournment, I specifically mentioned Mrs Toll because she was on the list of witnesses which I had before me. The answer was that it was not intended to call her. I cannot recall specifically if both applicants made that answer but that was certainly my understanding that neither wished to call her, nor indeed any other witnesses. My note indicates that neither applicant wished to call witnesses. I am quite satisfied I indicated that if it was intended to call witnesses that was the time to call them. This is not in my notes but in my recollection of my raising witnesses, because I can recall seeing Mrs Toll in the list of witnesses.
Then the Tribunal heard Mr Markey, the employer, who gave his account of the matter. He said there were two meetings with Mr C J Hipgrave. A Mr Ward was called, a customer, and he was able to give some evidence of that.Then an application was made. According to the Chairman it was made by Mr T Hipgrave; to call Mrs Toll, that being at the conclusion of the Respondent's case and according to the Chairman's Notes:
"The application to call Mrs Toll was made by the applicant Mr T Hipgrave" From reading my notes which are brief on this point, there is no indication Mr C J Hipgrave was associating himself with this request."
That was the Chairman's recollection of the matter. They decided not to allow the application, which was made ostensibly by Mr T Hipgrave. Their minds were no doubt more on the issues concerning him than on those concerning Mr C J Hipgrave. They were not, apparently, shown any proof of evidence.The recollection of Mr C J Hipgrave is that it was a joint decision by the Tribunal not merely in form but in substance. The Chairman consulted the industrial members and the matter which they mentioned in particular was the unfairness of allowing one party to call a witness out of turn, who had been sitting and listening to the evidence on the other side. That was mentioned, and it may well be, we do not know, that the Chairman had in mind what was said by this Tribunal in the case of Aberdeen Steak Houses Group PLC v Ibrahim [1988] ICR 550. That was a case in which a great deal went wrong. There was a conversation a few days before the hearing, in that case, in which one party's principal witness admitted to the other side that he, that witness, was going to tell untruths at the hearing. When the other side was giving evidence no reference was made to that and Counsel then raised the matter for the first time in cross-examination. That was an irregularity, for Counsel to do a thing like that. It was a matter which was clearly essential to the issues and it was raised for the first time by Counsel, who should have known better, when he was cross-examining; but then he was allowed to recall his witnesses to deal with the matter. Then another application made on the other side to recall a further witness and that was rejected by the Tribunal. It was a wholly unsatisfactory situation and this Employment Appeal Tribunal dealt with it by allowing the appeal. It does not seem to us that the circumstances are in any way like this case where Mr C J Hipgrave and his son Mr T Hipgrave appeared in person, so there is no point in trying to draw particular principles from it; but one thing was said by the President of this Employment Appeal Tribunal which seems to us to be of great importance. He said (page 558):
"Whilst leaving the ultimate decision [that is on the matter of discretion and allowing witnesses to be recalled] of the procedures and rules of evidence to the discretion of the chairman, it seems to us that under normal circumstances the party opening a case should call his evidence, by which we mean all his relevant evidence, and should then close his case. When in cross-examination questions go to credit only, the party cross-examining should be bound by the answers of the witness. Total informality and absence of generally recognised rules of procedure and evidence can be counter-productive in that parties may not feel that their cases have been fairly and appropriately dealt with. Thus it seems to us important that a tribunal should be astute to prevent the tactical presentation of evidence in a way which would not normally be permitted and which can cause embarrassment or prejudice to a party."
Here it is said that Mrs Toll, had she been called would have said that Mr Ward could not have heard what he said he heard of an important conversation between Mr C J Hipgrave and Mr Markey. We have been told that the evidence would have been that Mrs Toll arrived and saw Mr C J Hipgrave coming down (after the conversation) and saying "I've been sacked" and she then went in. She saw Mr Markey, and Mr Ward was not there. One does not need to be particularly analytical to see that there might be some doubts and difficulties about that evidence. We have not heard it and it is therefore idle to express them but the Tribunal will have no doubt heard something of what this witness might have said.It is important to have regard not merely to what the Chairman has told us in his letter but also to the decision itself. It is a long and carefully reasoned decision. After dealing with Mr T Hipgrave's complaint, which they upheld, they turned to Mr C J Hipgrave's complaint where the only issue was whether he had indeed been dismissed. They say at paragraph 20:
"It is for the applicant to prove that he was dismissed. How did the contract of employment come to an end? As I have said, there is the acute difference between them."
At paragraphs 22 to 24 we read:
"It really comes down to whether we believe Mr Colin James Hipgrave's account of how the employment came to an end. As I have said, these are difficult matters. However, we do not accept his evidence. We are satisfied it was more likely that he would come back after being told by his son that he had been dismissed and being annoyed with Mr Markey, and have a rather unpleasant conversation with him and then walk off, which is in effect Mr Markey's explanation."
The applicants clearly indicated that they did not think very highly of Mr Ward's evidence and, while not discounting it, we have accepted Mr Markey's evidence as being more likely to be correct in the circumstances of the case, rather than on considering Mr Ward corroborating him and therefore two witnesses against one.Therefore we are satisfied that the contract of employment came to an end through Mr Colin James Hipgrave walking out. This is a practical form of resignation."So they say, though not actually regarding Mr Ward as a discredited witness, they do not decide the case on the basis of his evidence; they decide it on the basis of probability having heard Mr Markey and Mr C J Hipgrave himself.It appears to us, indeed we are quite clear, that the question whether to allow a witness to be called out of turn, after a party has closed his case, in rebuttal (or whatever the reason given is for the request) must be a matter of discretion for the Tribunal. In this case, seeing that Mrs Toll was brought there, presumably with a view to her giving evidence for one or other or both of Mr Hipgrave Snr and his son, the Chairman was astute to enquire - certainly speaking for myself I have seen many tribunals and courts being astute in just the same way -to say "here this witness is - do you wish to call her or not; it is up to you but remember this is your opportunity. If you are going to call a witness that witness should be called now, you probably won't be allowed to call them later": words to that effect are almost commonplace. Something like that was said quite clearly by the Chairman on this occasion, with no doubt the approval of his members, and the answer was "no". Then the evidence for the Respondent was called. It was Mr Markey and Mr Ward. The Tribunal did not rely on Mr Ward as being a corroborative witness making it two to one, they relied on their view of Mr C J Hipgrave; the correctness of his recollection on one side, Mr Markey's on the other and the probabilities of the situation. Having regard to those matters, which they clearly would have had in mind when the application was made to them, they conferred with each other and in the exercise of their discretion the Tribunal said "we will not allow you to call a witness when you have specifically said that you would not be calling that witness at an earlier stage, that witness has been sitting here listening to the evidence and we think that that would represent an unfair advantage if we were to allow it".It seems to us that the Tribunal were well entitled to exercise their discretion in that way. It is of course settled that when an appeal is brought, we can entertain it only on a matter of law. Matters of law can arise with regard to the exercise of the Tribunal's discretion if they exercise it on some quite false basis, or under a mistake of law, or in a way which no reasonable Tribunal could have exercised their discretion.We think on the contrary that this was an exercise of discretion which cannot be faulted and it is quite idle to say that a different Tribunal or indeed this Tribunal itself, if called on to make the same decision, might have reached a different decision and allowed the witness to be called. The experience, certainly of almost every Court and Tribunal, is that allowing a witness to be called out of turn is liable to lead to all sorts of difficulties, as in the Aberdeen Steak House case, to which I have referred. When parties appear in person, as Mr Hipgrave and his son did, the Tribunal is and should be anxious to extend every possible latitude, but not a latitude which may cause difficulty in administering justice or lead to injustice. That was in the mind of this Tribunal. They no doubt also had in mind the warning, the request which the Chairman had made so to speak "at half time" to Mr Hipgrave's brother, and of course to the fact that it was Mr T Hipgrave who was making the application to recall Mrs Toll for the first time. Those were matters for this Industrial Tribunal.We cannot find that there was any error in their approach or that the exercise of their discretion can as a matter of law be faulted in any way and in those circumstances, since this is the only point in the appeal, it will have to be dismissed.