Hulme v T N T Express [1994] UKEAT 653_93_1404

EAT
Hulme v T N T Express
[1994] UKEAT 653_93_1404 · 1994-04-14
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Manchester in April 1993. The Appellant is Mr Gordon Hulme, who was employed as an HGV1 Driver by TNT Express (UK) Limited from the 24th September 1984 to the 16th November 1991.On the 23rd December 1991 he presented an application to the Industrial Tribunal complaining of unfair dismissal and seeking compensation. It was stated in the form in Box 3 that his representative was a firm of solicitors in Rochdale, Hartley Thomas & Wright. Mr Hulme was one of a large number of employees making similar claims against TNT Express.Those claims were heard by the Industrial Tribunal, as consolidated cases, in April. There were hearings on the 19th, 20th, 21st, 22nd, 23rd, 27th, 28th of April. At the hearing Mr Hulme and the other Applicants were represented by the solicitors, Hartley Thomas & Wright. Mr Binks of that Firm was dealing with the matter. The solicitors had instructed Counsel.On the 23rd April, after the hearing had been going on for 4 days, Mr Binks wrote a letter to all those that he was representing in which he said, on page 2:
" As a result of comments made by the Chairman, and particularly as a result of comments made regarding his discretion regarding ordering costs against the Applicants if the case should be lost, we discussed the case with the Chairman at length on the morning of the 23rd April, in the presence of Mr Hinchcliffe, Barrister for TNT."
He said in the letter that, after discussing the case at length, the Chairman indicated that at this stage in proceedings he had formed a certain view about the case. Although the case was far from over (he had not, of course, heard any evidence from the Applicants) he did indicate that he thought the Applicants would have an uphill battle in persuading him that they were unfairly dismissed. The letter contained this important paragraph:
"As a result of the indications given by the Chairman at this stage, we should advise you that there is a high probability that if we choose to proceed further in this matter, and lose, then an Order may be made that the Company's costs be paid yourselves. We understand that the Company's legal costs to date are somewhere in the region of £50,000.00.
The purpose of this letter is to inform you of the Chairman's comments to date, and to make you aware of the potential danger which you find yourself in regarding costs should you pursue this matter further and lose.We would be obliged if you would consider the contents of this letter. . .If we are unable to contact you by telephone over the weekend, we would be obliged if your would contact our Mr Binks at our offices on Monday."Mr Hulme, along with the other Applicants, with the exception of a Miss Cooper, decided to withdraw from the case having received that advice, particularly in view of the risk as to costs.Mr Hulme has informed us, in the submissions which he has made to us this afternoon "in person", that he decided to withdraw on the solicitor's advice. The result was that the Tribunal made an Order, notified to the parties on the 19th May, dismissing the applications on the withdrawal by the Applicants.It appears however, that Miss Cooper managed to achieve a financial settlement with TNT.On the 31st May 1993 Mr Hulme wrote a letter to the Tribunal applying for a review of his unfair dismissal case heard on the 19th and 28th April. He says in the letter:

"I was present every day from the beginning of the case . . ."

His reasons for appealing were that first:
"Only TNT's version of the case was listened to in any great detail. But not one applicant was allowed in person to give their testimony in this tribunal. Surely this cannot be reasonable.
Also on the 23rd of April on the 5th day of the hearing, a discussion was held at great length in private with the chairman and in the presence of our own Barrister Mr Burns, our solicitor Mr Binks and Mr Hinchcliffe TNT's Barrister regarding the case. Surely at a tribunal all aspects of the case should be made open, at that hearing."He then explained that, even though he and others had withdrawn from the case, the reason was because of threat of losing their homes as a result of a costs order being made against them on the application of TNT. He concluded by saying:
"Miss Cheryl Cooper was the only case that was heard and settled. Surely in the interest of Justice if she had a case for unfair dismissal. Others with similar grievances have cases to be heard fairly by the tribunal and not under one sided views."
As a result of that letter and a number of similar letters from other original applicants in the case, a review was applied for and was dealt with by the Chairman in his notification to the parties on the 1st July 1993. The Chairman refused the review on the grounds that the applications made by Mr Hulme and the others had no reasonable prospect of success.The Chairman set out the background to the Order which the Tribunal had made dismissing the applications. He dealt with each application for review separately. As regards Mr Hulme's application the Chairman said this:
"Mr Hulme also relies upon the said letter [that is the solicitor's letter of 23rd April] and claims he withdrew because of the threat of an order for costs being made against him. Mr Hulme also refers to a meeting held in private on 23 April 1993. No such private meeting took place and all matters save for one were dealt with by the Tribunal in open court. The only matter dealt with by the Tribunal in Chambers was on 22 April 1992 when the Tribunal had to decide upon whether an allegedly confidential letter should be disclosed by the respondent to the applicants it already having been disclosed to the applicants' legal representatives."
After he had considered all the individual applications for review the Chairman commented in paragraph 17 on the detail of the solicitor's letter to the various Applicants and then stated in paragraph 21 the reasons why he considered that various matters should be taken into account in deciding whether a review should be granted. He pointed out four matters. First that all the Applicants, when they withdrew their cases, were represented by experienced counsel and solicitors. Secondly, all the Applicants, as could be seen from their letters and their positions, were intelligent and experienced men. Thirdly, each applicant withdrew his application in clear and unequivocal terms, having taken and accepted legal advice. Finally, as a matter of general consideration, it was important that there should be finality in litigation.The position today is that the letter which Mr Hulme wrote to the Industrial Tribunal on the 31st May 1993 has been treated as his appeal to this Tribunal. We have examined the papers. We have discussed the matter with Mr Hulme at some length. We have come to the conclusion, unfortunately for him, that there is nothing that can be done for him on this appeal. The reason is this: this Tribunal only has powers under the Employment Protection (Consolidation) Act 1978 to hear appeals on questions of law which arise from decisions of industrial tribunals or arise in proceedings in the industrial tribunal. It is necessary to have a point of law before an appeal can get on its feet. The purpose of this preliminary hearing is to decide whether Mr Hulme has an arguable point of law. If he has, it should go on to a full hearing at which TNT would be represented. If he has not got an arguable point of law, then there is no point in the matter proceeding any further and the appeal will be dismissed.On the facts summarised it is impossible to find any error of law on the part of the Tribunal. The Order made by the Tribunal was that the applications were dismissed because they were withdrawn. There is no dispute that the applications were withdrawn and that they were withdrawn on legal advice given in writing. We are not concerned, any more than the Industrial Tribunal was concerned, with whether that advice was right or wrong. What we are concerned with is whether that advice was understood. Mr Hulme has made it clear that he understood the advice. He understood that he was being advised that, if he went on, there would be a risk as to costs. He and the other Applicants did not want to run that risk. They therefore did not go on with the case.Having decided to withdraw it was not open for Mr Hulme and the other Applicants to re-open the case. Once a case is withdrawn, that is the end of it. If Mr Hulme wishes to set aside the Order dismissing his cases on withdrawal he would have to show there was a mistake in appreciating the legal position. There was not any mistake by the Tribunal, either in the decision dismissing the applications or in the later decision of the Chairman in refusing to review it. The Chairman was right for the four reasons mentioned in refusing to allow the cases to be re-opened.We appreciate that this result may seem harsh to Mr Hulme and the others in a similar position. They brought a case. Having withdrawn it they obtained nothing except the benefit of avoiding a possible Order for Costs against them. It may be difficult for them to accept that Miss Cooper, who did not withdraw, was able to go on and achieve a settlement when her position may not have been in any way significantly different from the others. That is an unfortunate position, but it is not one that this Tribunal can do anything about, if there is no error of law by the Tribunal. We are compelled in these circumstances and for those reasons to dismiss the appeal.