Ministry Of Defence v JG [1994] UKEAT 573_94_0711

EAT
Ministry Of Defence v JG
[1994] UKEAT 573_94_0711 · 1994-11-08
MR JUSTICE PILL : These two cases are two of a very large number of claims for compensation made by women following their dismissal from Her Majesty's Forces because they were pregnant. Six appeals were listed for hearing this week. The Secretary of State for Defence appeals against decisions of Industrial Tribunals in each case. The case of Mrs Pitt was decided on 20 May 1994 by an Industrial Tribunal held at London (South) and the case of JG by an Industrial Tribunal held in Exeter on 3 May 1994. In the case of Mrs Pitt the Originating Application was dated 14 August 1992 and in the case of JG, 16 November 1993. In both cases the Appellant served a Notice of Appeal within the time limit. In each case there were grounds in support of it. In the case of JG they were settled by Counsel.By their present application the Department seek to amend the Notices of Appeal. They seek to put what is admittedly and avowedly a different case from that put forward in the Grounds of Appeal served within the time limit and before the Industrial Tribunal. After a hearing lasting almost a day, the application for leave to amend in the case of Mrs Pitt has been abandoned. However, it is appropriate in the course of this judgment to refer to it because of the manner in which the application has been made in the context of general considerations applying to cases of this kind.It is important that we give judgment now at the conclusion of argument rather than upon further consideration so that we can proceed with the substantive hearing in the case of JG.Following the decisions of the two Tribunals in the present cases this Tribunal gave judgment in the case of Ministry of Defence v Cannock and others on 29 July 1994 (now reported at 1994 IRLR 509). On 18 October 1994 an amended Notice of Appeal in the case of JG was served and on 1 November 1994, a re-amended notice and an amended notice in the case of Mrs Pitt.The Respondent's Solicitors received the amended notice in the case of Mrs Pitt and the re-amended notice in the case of JG on 2 November, that is Wednesday of last week. We have referred to the fact that the re-amended Notice of Appeal introduces fresh grounds and a fresh case. In the case of JG the amendments run to over 5 pages of type script and in the case of Mrs Pitt to over 6 pages.The case of Cannock and others was heard of course to determine the cases before the Tribunal but the opportunity was taken with the encouragement of the parties, particularly the Department, to set out guidelines which might be followed by Industrial Tribunals. Concern was felt about the manner in which the cases were being handled at Industrial Tribunals and the Department were concerned about the size of the awards which in some cases were being made.Mr Vajda, for the Department, submits that leave should be granted notwithstanding the late application so that the appeals can be determined in accordance with the guidelines in Cannock . He has expressed on behalf of the Department the very proper concern which the Department have for public money and its expenditure. The application is made, as Mr Vajda frankly put it, so that the Department could have the benefit of Cannock. Mr Vajda has referred us to several passages in the judgment in Cannock to illustrate the points which he seeks to make upon this application. At paragraph 25 of the Report the Tribunal saw fit to make preliminary general observations, some of which were in relation to the long time lag between the date of the unlawful acts, namely the dismissals due to pregnancy, and the date of the hearing of the complaints. At point 2(b) under the general heading `Preliminary General Observations' the Tribunal stated:
"Until 1993, any woman, whether employed by the State, such as the seven applicants, or otherwise, who was dismissed by reason of pregnancy would have been entitled to an award under the Act or the Directive which was limited to £11,000. Thus, if the applicants' claims for unlawful discrimination had been brought in the 1980s, say, they would have recovered no more than the statutory maximum in force at that time and the Industrial Tribunal would have had no power to award interest. It follows, therefore, that if Parliament had not exempted employment in the armed services from the Act, none of the complainants in this case would have recovered more than a few thousand pounds. Thus, the uncertain legal position has, in one sense, worked in the applicants' favour. Further, the law has developed, so that awards for injury to feelings have increased as the courts have become more mindful of the humiliation, anger and distress that sex discrimination can cause. Again, because they are bringing claims to which there is no time limit (the Government having failed to implement the provisions of the Directive in full) the applicants are getting a benefit from the delay. The same applies to the awards of interest which only became payable, under domestic law, from November 1993."
Earlier, at paragraph 19 the Tribunal had stated :
"In laying down guidelines it will become clear that we are taking a different view as to the proper approach to compensation from that taken by some Industrial Tribunals. Yet, because the MoD have chosen not to complain about the Tribunals' general approach, save on the limited specific grounds which is argued before us, there will be an inconsistency between the actual disposal of these appeals and the results which would have been obtained had our guidelines been applied to the seven cases. Further, because of the way the matter has been argued, large awards which we feel to be wholly unjustified, will remain undisturbed, although we would hope that, for the future, Industrial Tribunals will be wise enough to ignore them when assessing compensation."
Before proceeding, we make two comments upon that paragraph. First, the reference to the Ministry having "chosen not to complain" would appear to arise from an earlier paragraph to which we will refer whereby the Department declined the opportunity to apply to amend their Grounds of Appeal. The second comment is to draw attention to the expression "for the future" towards the end of that paragraph.Mr Vajda also referred us to paragraph 146 which is the first paragraph in the decision under the heading "Summary of Conclusions":
"1. Industrial Tribunals were faced with difficult problems; these are some of the first cases with which they have had to deal where their jurisdiction to award compensation is unlimited. It appears to us that they have conscientiously attempted to assess compensation in the light of the arguments presented to them. To an extent, the parties have also been "feeling their way". It is our view that, often through no fault of their own, some Tribunals have been induced to make what we regard as manifestly excessive awards of compensation. That is because we do not consider that either the MoD or the applicants have put before the Industrial Tribunals what we believe to be the correct approach to the assessment of compensation."
Before turning to the reasons Mr Vajda gives as to why leave to amend should be granted, we refer briefly to the decisions of the Industrial Tribunals.In Mrs Pitt's case the Tribunal in their conclusion at paragraph 13 stated that:
"On the evidence we find on the balance of probabilities that Mrs Pitt would have remained in the Army up to the completion of 12 years' service, that is to July 1995."
They went on to find that she would have been promoted to corporal but not, in their view, to sergeant. They also considered general damages, cost of childcare and other matters.In JG the Tribunal, having set out the facts, posed 3 questions. The primary question is - Would she have taken the opportunity had it been available? (that is the opportunity to remain in the service) second, the question then arises - How long would she have remained? Thirdly the question is whether she would have remained beyond the 16 years and whether she would have been promoted and/or allowed to extend her service?The Tribunal applied as a legal test the principle in Davies v Taylor [1974] AC207, a decision of the House of Lords which they rightly state:

"dealt with the question of how to value the loss of a chance."

The speech of Lord Reid in that case is cited at length.Mr Fortune opposes both applications to amend and he draws attention to the lapse of time between the original Notice of Appeal and the disclosure of the present applications, about four months in each case. Even if you took, as he did for illustrative purposes, the date upon which the decision in Cannock & others was promulgated, 29th July 1994, there is a delay of considerably more than 42 days, which is the time within which appeals must normally be brought, before the amendments were disclosed; it is about three months. He referred to Marshall v Harland and Wolff [1972] ICR 101 and Walls Meat Co Ltd v Khan [1979] ICR 52.Mr Vajda first submits that the Tribunal should have regard to Court of Appeal practice when considering appeals and also applications to amend Grounds of Appeal and he has referred us to Order 59 Rule 4, "Time for Appealing" and Order 59 Rule 7, "Amendment of notice of appeal and respondent's notice". The wording of the rules is different from the Practice Direction which has been issued by this Tribunal to cover this and other matters. (Practice Direction 17 February 1981, paragraph 5(c)). Mr Vajda has drawn attention to notes in the White Book and to the statement that it is entirely in the discretion of the Court to grant or refuse an extension of time for appealing. The Court should have regard to the length of the delay, reasons for the delay, the chances of the appeal succeeding if time for appeal is extended and the degree of prejudice to the potential Respondent if the application is granted.He submits that this is not however an application to appeal out of time but to an application to amend a Notice of Appeal brought within time and he submits that the test is more tolerant than that for the other purpose. He referred us to the note under Rule 7 which includes the statement:
"The usual practice is for leave to amend to be granted, unless the amendments raise issues which are not open on the pleadings; the facts necessary to sustain the point of law concerned have not been established in the court below; or the granting of leave to amend would give rise to significant prejudice to the other party."
Mr Vajda submits that the practice of the Employment Appeal Tribunal in relation to time limits and the taking of new points has been too strict. He has referred to cases in which that practice has been established - GKN (Cwmbran) Ltd vTI Lloyd [1972] ICR 214 and Kumchyk v Derby City Council [1978] ICR 1116 . In Lloyd , Sir John Donaldson, sitting in the National Industrial Relations Court, stated:"Whether or not it is correct that there is some difference in the scope of appeal provided by the respective Acts, it is sufficient to say that, in our judgment it would be unjust to allow new points to be raised on appeal which could have been, but were not, raised by either party before the tribunal and which formed no part of the tribunal's reasoning".New points are sought to be raised. Mr Vajda rightly has distinguished the question whether leave to amend should be granted from the different question as to whether a fresh point should be permitted to be argued on appeal. The authorities bear upon both points.

In Kumchyk Arnold J giving the judgment of this Tribunal stated at page 1123B

"the case which one can conceive as a case in which it would not be unjust to do so, that is to allow a new point of law to be argued, would be a case in which there has been some deception on the part of the Respondent to the appeal which entitles the Appellant to say,"This really is a case in which we were headed off from running the point which we are now seeking to run before the appellate court by conduct which cannot possibly be condoned in justice by the appellate court". There may conceivably be other matters of that sort which would negate the unjustness which the National Industrial Relation Court mentioned, but it would have to be, we think, some matter of that sort. It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate."
Mr Vajda has referred us to the decision of the Court of Appeal in Doyle v Olby Ltd [1969] 2 QB 158 in support of his submission that this Tribunal has taken too strict a view of applications to argue a fresh point. That was a case where Counsel in his closing speech had put the claim for damages in a different way from the way that he sought to argue it in the Court of Appeal. The case is the leading case in which the Court of Appeal considered the proper measure of damages for deceit as distinct from damages for breach of contract. In our view the point in Doyle was quite a different one from the point in the present case, especially having regard to the background which we will need to mention in more detail, to the Industrial Tribunal hearings and to these appeals.That the Court of Appeal does not disapprove of the practice of this Tribunal is indicated in the case of Hellyer Bros Ltd v McLeod and Boston Deep Sea Fisheries Ltd v Wilson [1987] ICR 526.

Lord Justice Ralph Gibson stated at page 565F:

"that in the absence of special or exceptional circumstances respondents to an appeal [that was a respondent's application to amend grounds to be relied on] could not be permitted to raise a new point of law in order to retain a judgment in their favour unless it was clear that no new evidence was necessary and that no further relevant or investigation of the evidence given would have been produced or carried out if the new point had not been pleaded."
(and also page 569H to 570A).Mr Vajda submits that this case is one of those falling within the limited circumstances in which a new point can be taken on appeal. He submits that in relation to amending a notice of appeal the need to produce a reason for the delay does not arise as it would arise in the case where time to appeal at all is requested. Speaking of the failure of the Department to act promptly upon the decision of Cannock , he refers to the fact that the holiday period followed immediately upon the announcement of that decision and to the very large number of cases which the Department had to handle. We note the scale of the operation. It was such that, quite apart from other points to which we refer, we would have expected the Department to act promptly on the decision in Cannock in which, in part at their request, guidelines were laid down by this Tribunal for the guidance of Industrial Tribunals.In our judgment it is material to note the nature of the amendments sought. This is not a mere drafting amendment or a development of an existing point. It is a wholly new case which is sought to be argued and is put to us as such by Mr Vajda. In our judgment in that context the absence of any good reason for the delay following the original notice and upon the announcement of the decision in Cannock is a factor material to the decision which we reach.There is, Mr Vajda submits, no prejudice to JG. It was at a very late stage, as we have indicated, and when Mr Vajda became aware of Mrs Pitt's position on the cost of childcare and her declining to contest a point which was in the original ground of appeal, that those instructing him indicated that they accepted in her case a prejudice if the application to amend were to be allowed. It was for that reason and that reason alone, we were told, that the application is not now pursued in the case of Mrs Pitt. It has not been alleged in the case of JG that prejudice to her is a relevant factor.The broader background to the application is raised because of the understandable wish of the Department to have cases, or as the Tribunal in Cannock decided to put it, "future cases", decided in accordance with the guidelines laid down in that case. Further, Mr Vajda submits that the amendment should be allowed because until those guidelines emerged from this Tribunal in Cannock the Department were not clear how to put their case. Indeed Mr Vajda put it as strongly as this. He said that prior to Cannock there was no guidance as to how tribunals should approach the problems which arose in these cases. He developed that submission, in reply, by stating that Cannock represents a significant clarification of the law. We have no hesitation in agreeing that Cannock is a valuable elucidation of the law in relation to cases such as the present. Indeed as two members of the present Tribunal sat in Cannock the parties would not expect to hear otherwise but we are unanimously of the view that Cannock is a valuable statement which will be kept in mind we are sure by Industrial Tribunals. The principles which it states do not fall for consideration upon the present application. What, however, we totally reject is the submission that prior to Cannock the Department were, to use a colloquialism "in the dark" as to how to conduct their case when claims of this kind for compensation were made. Questions which come up for consideration are as to how long the service woman would have remained in the service had she been permitted to do so and having had her pregnancy and child; what promotion she might have expected had she remained in the service; whether she has taken reasonable steps to mitigate her loss, having been wrongfully dismissed from the service. That of course is not intended to be comprehensive. Those questions however, are questions of a type which for a very long time have been the subject of consideration by the Courts in other contexts.A point on which it is suggested that no guidance was available is the question of loss of a chance. We mentioned the fact that one of the Tribunals appealed in the present Appeals did refer in terms to the case of Davies v Taylor and the statement of high authority from Lord Reid in that case: Mallet v McMonagle 1970 AC 166 is another case found by this Tribunal in Cannock to be relevant. One only has to look at Clerk and Lindsell on Torts a standard text book, to see cited there at page 258 (16th Edition 1989), the statement of Earl CJ in 1860:
"Supposing a lady to have been injured and disfigured in a railway accident, she could not say that she ought to recover damages because she was prevented from going to a Ball at which she might have met a rich husband."
(Priestly v McLean 1860 2F&F 288 and 289).On the subject of mitigation of damages there is authority still cited which is almost as old,( Dunkirk Colliery v Lever 1878 9 Ch Div 20 cited in the famous statement of Lord Haldane in British Westinghouse v Underground Railway 1912 AC 673 .We are puzzled by the submission that the Department had had no guidance on issues such as these. We invited Mr. Vajda to take instructions as to what course had been followed in Industrial Tribunals by way of submissions from the Department.Mr Fortune who appears for both Respondents on these Appeals, appeared for the then Applicant JG before the Industrial Tribunal and it is clear that in her case the question of valuing a chance was canvassed. Mr Fortune says that it was at the initiative of the Chairman of that Industrial Tribunal. In Pitt balance of probability was canvassed. Mr Fortune also told us, and we accept, that in some other cases in which he has appeared at Industrial Tribunals, the tortious test for assessing a chance has been adopted and accepted on behalf of the Department for whom Counsel always appear. In the case of Cannock , before this Tribunal, it is clear that leading Counsel on behalf of the Department argued, properly and we have no doubt carefully, that the contractual test was appropriate. The Tribunal rejected that submission, noting at paragraph 61:
"We reject the Mod's submissions to the effect that a contractual measure of damage is appropriate."
We have been told by the Department that 2,822 cases have either been settled or disposed of by Industrial Tribunals. We had other cases listed before us which for one reason or another are not preceding but we have noted that in at least one of those, which pre-dates either of the present cases in the Industrial Tribunal, the question of the valuing a chance was in the minds of the members of the Tribunal.It is understandable that those instructing Mr Vajda do not wish to indicate what instructions they may have given to Counsel appearing in the many cases which have come before Industrial Tribunals. The privilege involved is one which we can understand the need to protect. However, on the information before us it is clear that tortious test has been canvassed and not merely as an isolated incident and, in some cases, without any contrary submissions from those appearing for the Department. That may be by the way but we refer to it because of our incomprehension of Mr Vajda's submission that no guidance was available before the case of Cannock . The principles involved in assessments such as these have been established for a very long time. We are bound to say that on the material before us, we are surprised at what appears to have been, over a considerable period of time, the complete lack of any policy as to the legal basis upon which the Ministry of Defence cases were to be put forward at hearings before Industrial Tribunals. Legal issues would be common in most cases though the facts, of course, would be different. On the information before us, the Department cannot have addressed itself to this problem. It may well be, as this Tribunal in Cannock pointed out, that Industrial Tribunals have not had the help which they should have had when determining these cases, and that may have been in part responsible for the results of the cases. Industrial Tribunals, which while familiar with other kinds of assessment have not perhaps been familiar either with this type of assessment or with the sums of money involved were entitled to have the guidance of the Government Department involved by way of a considered and consistent approach.We approach the application, first on the narrow ground and put aside for a moment the more general background to which Mr Vajda has invited our attention. In our judgment, having regard to the lapse of time since the Notice of Appeal was served, the nature and scope of the amendment sought, and the lack of any good explanation as to why leave to amend was not sought earlier, we should refuse the Application for Leave to Amend in the case of JG.Our consideration of the broader aspect reinforces us in that conclusion. We have noted that this Tribunal were invited in Cannock to state guidelines. Members of the Tribunal were clearly aware, from the passages in the judgment to which we have referred, of the problem which could arise if they made statements which were not necessary for the decision of the cases actually before them.Paragraph 18:
"However, in addition to giving rulings on particular points, we have been invited by the MoD to lay down general guidelines which Industrial Tribunals might wish to apply when determining the amount of compensation for loss of employment and injury to feelings in comparable cases under the Act. Mr Elias QC, who appeared on behalf of all seven respondents (whom we shall call "the applicants"), made it clear that he was acting only in these cases. His assistance on the general points was given without prejudice to his clients' rights and we accepted his submissions, for which we are grateful, on that basis. He indicated, for understandable reasons, that he would feel inhibited from making general submissions if the MoD were entitled to amend their notice of appeal and argue those points which they had not argued before the Industrial Tribunal but which Mr Elias accepted, expressly or impliedly, in his general submissions, as indicating that Tribunals had fallen into error. Before Mr Elias made his submissions, we gave Mr Pannick an opportunity to amend his notices of appeal to cover points which had not been canvassed in the Industrial Tribunals, but he declined. We deduce that the MoD's position is that, aside from the particular points with which we must deal, they are content to "live with" the seven awards and use the benefit of our general guidance for all future cases. Thus, it became clear to us that there are a number of criticisms which could have been made about these seven particular decisions which the MoD chose not to pursue before us."
That Counsel for the Department was invited to seek leave to amend, and was invited on more than one occasion, is confirmed by my colleagues. The headnote in the report states in the recital of the facts:
"During the proceedings however, the MoD declined an invitation from the EAT to amend its Notices of Appeal to cover points which had not been canvassed in the Industrial Tribunals."
Mr Vajda has made the point that a degree of unfairness between Applicants is inevitable in the present situation and he relies upon the passage in Cannock in which the Tribunal considered the consequences of delay. That may be so but the unfairness which would arise in this case, if leave to amend is granted, is an unfairness of the Department's own making. They declined the opportunity to seek leave to amend and Mr Elias QC's clients at that hearing had the benefit of that. To seek leave to amend now, where other peoples' clients are concerned would, in our judgment, be to create an unfairness as between Applicants and an unfairness resulting from the Department's own conduct. It would too, we think, be unfair to Mr Elias who gave the help he did hardly thinking, we suppose, that in relation to past decisions of Industrial Tribunals, applications such as the present would be made to the possible disadvantage of clients in those cases.We do not know why the opportunity to seek leave to amend was not taken in Cannock and cases heard with Cannock . We regard the conscious decision not to seek it at that stage as an additional reason why leave should not be granted in the case of JG.Both on the narrow and the broader ground we consider that the fact that the Department are seeking to put forward a new case, and one with which their resources and their experience of very many cases ought, at any rate, as an alternative argument, been known to them for some considerable time, is a reason for refusing leave to amend. Accordingly, for those reasons the Application for amendment is refused.