Townend v Pride Of The Road (Travel) Ltd [1995] UKEAT 517_90_0610

EAT
Townend v Pride Of The Road (Travel) Ltd
[1995] UKEAT 517_90_0610 · 1995-10-06

JUDGE HULL QC:

This matter, so far as this judgment is concerned, is simply the application by the Appellant, Mr Kevin Townend, for leave to amend his Notice of Appeal by substituting a new Notice of Appeal.Mr Townend was first employed by the Respondents, Pride of the Road Travel Ltd, who provide bus services and have other interests, on 20 December 1986. After a little less than a year, he was promoted from being a conductor on their buses to being Operational Manager and he used to carry out various duties.Apparently, everything went well until the end of 1989, when he had been employed, of course, for nearly three years. There was a dispute when he went off in a huff; there was a dispute with one of the Director's wives, which apparently led to some unpleasantness; there were absences from work by Mr Townend; and eventually, he was in fact dismissed on 10 January 1990. Before that he had resigned and that resignation had been withdrawn, he had returned to the fold and carried on with his duties as Manager, but matters were not happy and his employment ended on 10 January. It was said by the employers that that was a resignation by him. The Industrial Tribunal concluded that it was in fact a dismissal.He issued his application to the Industrial Tribunal shortly afterwards on 22 January. He made various complaints but the principal complaint was that he had been unfairly dismissed and the remedy which he sought was compensation. The Respondents put in their form IT3 (as it is called) and that is at page 4 onwards. They said they intended to resist the application and they said that he had left voluntarily; and they said that he had been absent from his office on various occasions.The Industrial Tribunal in due course found that he had indeed been dismissed and they heard the case. Before that there were applications from the Applicant, who was then acting in person, for the matter to be adjourned. Details of those are to be found in a bundle of documents which has been prepared for us very recently by the Appellant's Solicitors. Those Solicitors wrote on 13 February 1990, before the hearing of course.
"We would be grateful if the hearing of this application could be adjourned for at least two months as the circumstances in which our client was dismissed from work are now being investigated by South Yorkshire Police and various departments of Government including Transport & the Inspector of Taxes. Our client was dismissed from work when he refused to sign some documents believed to be fraudulent and incorrect and these documents are now being investigated by the Police and the Departments mentioned. We understand the alleged fraud concerns obtaining grants from Departments of Government and not complying with the conditions in which the grants were made."
So that was the application made by Solicitors on behalf of the Applicant. The answer is at the next page, page 2.On 15 February, a Chairman of Tribunals caused a letter to be written. "It is far from clear that the issues to be considered by a Tribunal depend upon the outcome of police and other investigations and, in any event, there is a preliminary issue which is to be tried". And that was tried; the preliminary issue whether he had been dismissed or whether he had resigned.Then, on 26 June, shortly before the substantive hearing, Mr Townend himself (in person) wrote to the Tribunal and he explained the difficulty.
".... I am due to appear in front of the tribunal to give evidence on why I was unfairly dismissed. I am claiming I was dismissed because I refused to participate in illegal and fraudulent claims against the Department of Transport.
Unfortunately, South Yorkshire Police are refusing to give, or release evidence for the tribunal. After six months of investigation they totally refuse to release any evidence at all. I wonder if it is worth approaching the tribunal to issue an Order to the Police to issue the evidence."And there was a reply on 28 June, again from the Chairman of Tribunals:
"No order will be made requiring the police authorities to release or produce evidence in their possession.
The case will proceed as listed. The respondents have to call evidence to support the dismissal of the applicant as a fair one [that, of course, is right, the burden was on the Respondent employers to show the cause of dismissal]. The tribunal will consider the need for any evidence which is not available at the hearing, and if necessary can adjourn to enable additional evidence to be called."So that was the state of play there.The hearing duly took place. Mr Townend appeared in person. The Industrial Tribunal sat at Sheffield under the chairmanship of Mr Worrall for two days, on 16 and 17 July 1990 and they heard his complaint. The only evidence adduced by the Applicant was his own evidence, as we understand it. The Respondents attended with their witnesses; they had numerous witnesses and the Tribunal having found that they had, indeed, dismissed the Applicant, those witnesses (or most of them) gave evidence and the Tribunal had to choose between the two versions.Was the Applicant dismissed because he was refusing to join in something which he believed to be an unlawful practice, in which case almost certainly the decision would be that the dismissal was unlawful and improper, or was he, on the other hand, dismissed because of his various absences, and his failure to keep in touch with his employers as the employers, said?After the conclusion of the hearing, the Industrial Tribunal gave their judgment. It was promulgated on 18 September 1990 and that judgment is at page 14 of our bundle. They set out the facts. They say in their full reasons that the grounds for his dismissal, which were alleged by the Respondents, were conduct; in particular bad attendance; and they set out the unhappy events in that part of 1989 and the altercations which took place and the non-attendance and so forth.Then they came to their findings of fact having heard all the evidence.
"9. The applicant puts his case on the basis that he was dismissed because he had refused to prepare the fuel records for a fuel rebate and he had refused from time to time to fill these in because he was being asked to fill them in fraudulently. He was finally asked to do this on the way to the hospital on 9 January but refused because he was being instructed to prepare fraudulent registrations for the fuel duty rebate. [At this time his wife was either giving birth to a child or was expecting a child very shortly]. He maintains that because of his refusal to do just that the respondents came to the decision to dismiss him."
So there it appears that the Tribunal were fully seised of the contention which he was making; that he had been dismissed because he refused to join in something which, to him at any rate, was a dishonest and fraudulent practice. Then in paragraph 10 they say:
"10. This tribunal find no evidence on which we can say that the reason why the applicant was dismissed was because he refused to improperly fill in a fuel rebate form or any other form. There is no evidence that that was the reason for his dismissal. We are satisfied that the reason for his dismissal was his bad attendance record from September 1989 onwards. The applicant admits that there were times when he was not working. He does not dispute the facts about his attendances put to us by the respondents in particular the evidence of Mr Mellor and Mr Alan Platt. But his case is that as operations manager he had to go out on routes from time to time and he was away from his place of work and although he was doing his duty he was not seen by other management even though he was doing his job. Furthermore in his position he was allowed discretion in how he carried out his duties and that he often worked late at nights. He often worked at weekends ...."
So that was the case they had to consider and they said, having set out these issues in paragraph 11:
"11. .... For all those reasons we are satisfied that the applicant was dismissed and properly dismissed on the grounds of his conduct in particular his bad attendance from September 1989 onwards. .... "
They directed themselves correctly that it was for the Respondents to show them what the cause was and they found that the employers, in the face of the Applicant's evidence, had discharged that burden.They went on to find that "they acted reasonably in deciding that his absences justified dismissal" , and they then said, some might say stretching a point rather, but others might say, very properly and fairly, they found that he had not been warned and therefore, they said, the dismissal was unfair. But they went on to say that, in those circumstances, his conduct was such that he should not be entitled to any compensation. That being the state of affairs, he then appealed.The Notice of Appeal is at page 1 and what he said (still acting in person) is this. The Appellant was instructed by senior detectives that he must not give certain evidence that could incriminate himself or obstruct any investigations being made by the South Yorkshire Police and the Department of Transport. The Appellant therefore could not call any witnesses or give proper evidence to prove why his absences were due to pressure on him to participate in a massive fraudulent claim against the Department of Transport.That, so far as we know, is the first that has been heard of this contention; that it was at the request of the police that he could not tell the Tribunal all about it, or call his witnesses.Here he was saying, apparently for the first time in his Notice of Appeal, that he was prevented from giving all the evidence which he could have given by a police request. We have been told (and of course we accept, from Mr Baker) that his instructions are that at the hearing before the Industrial Tribunal, the Applicant in effect renewed his request for an adjournment. But it does not seem that he told the Tribunal that that was because there was evidence which he simply could not give; first, for fear of incriminating himself and secondly, because the police had asked him not to say anything which might prejudice their enquiries.If those matters had been laid before the Tribunal, at that stage, they had ample jurisdiction to order an adjournment (if they thought it just to do so) to make such enquiries regarding those matters as they thought right, but there is no trace of any such thing having been done.He goes on to say:
"I wish to appeal against the decision of the tribunal not to award compensation on the following points:
1. I was not allowed to bring any evidence to show that my absences from work were due to the pressure been (sic) put on me by the Directors of Pride of the Road to prepare fraudulent fuel records. South Yorkshire Police warned me that any evidence brought at the hearing could incriminate myself and would hinder their investigation. ...."So that is substantially repeating what he said before.
"2. The Department of Transport also refused to give evidence at the hearing until they had carried out a full investigation and held a Public Inquiry ....."
3. At the hearing I was not given the chance to cross examine the Respondents fully. In the case of Miss J Oakley .... "He also raised two other matters which it may well be that we shall not be troubled with, so I will not bother with those at the moment.So his case was, not merely that he had not got all the evidence he would wish because of the police investigations and the difficulty of getting the police to help, or anything of that sort, but that he had actually been prevented from giving evidence; and, indeed, warned that he might incriminate himself if he gave evidence which he wished to give.That was not laid before the Tribunal so far as we can see. With regard to the allegations made, the Chairman of Tribunals has responded as, indeed, always happens when the Tribunal is criticised for its conduct of the proceedings. He says, first of all, with regard to a complaint that the Tribunal did not order discovery or inspection of documents in the possession of the police, that they had no power to do that.Secondly, it was not thought right to postpone the Tribunal hearing until the police investigation had been completed and then, with regard to Miss Oakley, the accounts clerk, he said that, in fact, she was not recalled and it is said that that was by consent. And he dealt with the other matters which (as I say) we may not be concerned with.So that was the state of affairs then. Mr Townend had the assistance of Solicitors. He had appeared in person. The Respondents put in a long answer (which I do not think I need to refer to) dealing with the Notice of Appeal. Among other things they repeated their assertion that he had been dismissed for bad attendance and bad timekeeping and that the Tribunal had accepted it.There followed a great deal of correspondence between the parties, with the Applicant asking, at first without the consent of the Respondents, and eventually with the consent of the Respondents, for the hearing of the appeal to be delayed whilst these further steps took place; the police investigation; apparently (I think) a Customs and Excise investigation; a Department of Transport investigation and, of course, any trial which might result.The police investigation certainly did not go very rapidly. The police at one stage said that they had taken the decision not to proceed with any prosecution. The officer in charge was unwell and had to retire, or at any rate he was withdrawn from duty at the time because of some nervous complaint; there were further police investigations and eventually a prosecution was brought and it is said that at that prosecution evidence was given which is highly material and which is additional to the evidence which was available before the Tribunal and deserves to be called "new evidence".We have been told that there is much further to go, because witnesses who appeared at the trial, or were going to be called at the trial, are the very witnesses who are most important and their witness statements have not yet been disclosed to the Applicant.There were, in addition, at least two enquiries on behalf of the traffic authority, and those were mainly concerned with the safety of vehicles; the proper keeping of accounts of vehicles; and as a result of those certain views were expressed about the suitability of one of the Directors.In view of what happened later, I will not go into those matters any further. Although Mr Townend had appeared in person - he could not, of course, have legal aid before the Industrial Tribunal - he was not without the assistance of Solicitors and, in due course, those Solicitors instructed Mr Baker and the matters were laid before Mr Baker to advise. He advised that the Industrial Tribunal, in deciding whether the Applicant was entitled to any compensation, misdirected themselves; they had applied the wrong test. If you look at Polkey and Sillifant , said Mr Baker, there is a very arguable point that there has been a misdirection. He also advised, he tells us, "if there was a police investigation it might provide a second ground for appeal; fresh evidence. I advised that it should be sought, that is to say that fresh evidence should be sought and then it would be necessary to amend the grounds of appeal". Of course, it would be necessary to amend the grounds of appeal in regard to both points.What does not seem to have been laid before Mr Baker at that stage was that, so far from giving the evidence which he could give, the Applicant had been inhibited from doing so, first of all by the threat that he might incriminate himself and, secondly, by an earnest request, as it apparently was, from the police, not to say anything which might imperil the investigations. If it had been laid before Mr Baker, it is inconceivable that he would not have advised that in those circumstances there was a great deal more to the appeal than the mere obtaining of fresh evidence, but there it is.An essential preliminary, of course, would be to obtain the notes of evidence of the hearing before the Industrial Tribunal and also, of course, to start to decide exactly what evidence had been given and what evidence could be given by the Applicant, and these matters could all have been the subject of an amended Notice of Appeal.It might well be that particulars of them could have been sent straight away in a letter with an intimation that it was not possible for the Applicant, at that stage, to say whether, having obtained further evidence, he might wish to amend his Notice of Appeal further, but that, at any rate, the Notice of Appeal would be amended as soon as convenient. No such letter was written. The Respondents were left entirely in ignorance at the way in which the case was to be put against them, apart from the original Notice of Appeal.Then the extraordinary fact arises that for the next four years Mr Baker was not consulted again. All this time, apparently, various things were going on. There were (as I say) at least two Department of Transport enquiries by the Traffic Commissioner. There were also further police enquiries and in due course there were committal proceedings, apparently in 1994 on charges of conspiracy to defraud by false statements and on single counts of making false statements with intent to fraud, against three of the Directors.There were committal proceedings and if it were thought that any further evidence were required or might be adduced, we are told that they were the old style committal proceedings, that is to say viva voce. Of course, a person could and should have been deputed, one would have thought, to attend those proceedings on behalf of the Applicant. The Applicant himself could have attended, as a member of the public, and notes could be taken to see what was adduced by the prosecution then.Then in 1995 the case was listed in Leeds Crown Court. Leading Counsel were instructed for prosecution and defence. One has no doubt, having looked, as we have, at the weight of the witness statements, that this was to be a very substantial and serious case and would be very likely to take a substantial time.There must have been very considerable bundles of documents because the allegation for the Crown was that fuel duty and, I think, a subsidy in respect of rural buses, were the subject of a very large number of false entries and so forth.What happened was that, after discussions between Counsel, the charges against two of the Directors were not proceeded with. The indictment was amended, apparently, to add two new charges against the remaining defendant, Mr Platt, and he was charged and pleaded guilty to two offences of making false statements. We are told, and accept for present purposes, that the allegation there was not of fraud but of recklessness, that is to say that that Director had, in some way or another, been reckless in supplying what must have been false statements to the authorities, relating to one or other of these subsidies.Again, nobody apparently attended on behalf of the Applicant to see what was said and hear what was said. We do not even know under what section of what Act the charges of making false statements were made.Counsel was at last instructed in May 1995. Unhappily, by then, in February or March of this year, the Applicant's Solicitors had indicated to this Tribunal, apparently without consulting Counsel, that they were now ready for the case to proceed and so the Registrar caused the case to be set down and in due course it was listed for today. And then Counsel was instructed.We are, as I hope I have indicated, very grateful to Mr Baker for his submissions here. It appears to us that he has been very frank with us and that he has told us a lot about the case. He does so out of a sense of duty and we are very grateful to him.Counsel advised on 25 September 1995 and his advice occupied no less than 11 pages. That advice has been shown to us. It opens with the truly remarkable statement:
"1. As those instructing me are aware, I last advised in writing in this case on the 3 January 1991. I also provided those instructing me with a Note dated the 22 August 1995. .... "
He said he was provided in conference on 15 September with a large number of documents and:
"This was the first occasion [said Mr Baker] upon which I had been provided with such of the fresh evidence which those instructing me had obtained since the original hearing of the industrial tribunal in 1990."
And he said he had taken the opportunity to review it and his opinion was written on 25 September 1995 (rather less than a fortnight ago, about 10 days ago) and said Mr Baker, he was (in 1991) "of the opinion that there were two main grounds of appeal in this case. Firstly that there had been a misdirection of law (I have already mentioned that). Secondly, upon the basis that there was available fresh evidence". Now he advised a third, "that the industrial tribunal erred in law in failing to grant Mr Townend's application for an adjournment at the original hearing" , and the ground of "fresh evidence" , he advised, was the main ground of appeal and the matter he thought most likely to be successful.He dealt with a great many points and he said:
".... I have a copy of the list of Prosecution witnesses in that case. I am not sure as to whether this list is complete. ...."
Then he said, quite rightly, that it was far from clear from the certificate of conviction, and nobody had told him, what it was exactly that the Director who did plead guilty to making false statements, had admitted. He went on to say:
"I find myself in a very difficult position [I'm sure he did] in being asked to advise upon the merits of this appeal in view of the imminence of the hearing date .... but most importantly the fact that whereas I anticipate there is much further evidence which could be available to me upon which to make this decision of a nature which would be likely to influence me, I only have before me at this stage the sparse fresh evidence which I have already set out .... "
And he now sets out that:
".... as I understand it, Mr Townend expressly declined to give this evidence to the industrial tribunal due to the fact that he had been informed by the investigating police officers that he should not do so .... "
Of course, as we know, Mr Townend had given evidence, and apparently what he now says is that he had given edited evidence. Mr Baker said:
"I wish to see for myself from the notes of evidence of the chairman just what evidence Mr Townend did provide at the hearing .... "
One would certainly say, hear, hear, to that. We cannot be addressed on what evidence was given unless we have the chairman's notes of course.
"but in the absence of corroborating evidence, the EAT may well be slow to accept this line of argument and allow the appeal upon this basis. "
He repeats that he would like to see the notes of evidence and after dealing with various matters and saying that he would have liked to have seen the transcript of proceedings before the Crown Court:
"Although it of course can only be a matter for speculation, (again, one says hear, hear) I reasonably anticipate that if all of the above mentioned further evidence were now before me, I would be likely to be in the position to advise that Mr Townend's appeal to the EAT had reasonable prospects of success. ...."
From long experience at the Bar, I can say that one does not write like that, unless one has to.He deals with all sorts of matters, this is an 11 page opinion (as I say). He says in paragraph 11:
"My difficulty however, is, as I have already pointed out in this advice, is to seek to advise Mr Townend upon the merits of his appeal to the EAT, on the basis of the evidence which I now have before me. I consider that this is a most invidious position in that I suspect that the reason that such further evidence is not before me is of no fault on the part of Mr Townend."
There it is. Whose fault is it? I have already indicated obvious steps which should have been taken and which were not taken in this case.
"In those circumstances [he says] both Mr Townend and indeed the legal aid authorities will have to consider the future conduct of this appeal."
And he finishes:
"I should add for the sake of completeness, that in accordance with the intention I expressed in that advice, [his earlier advice] I have drafted and send with this Advice, draft Amended Grounds of Appeal."
So here we have Counsel, not instructed for more than four years, and then, at last, instructed with a bundle of documents; told to advise on the merits and left, at this late stage, to draft an amended grounds of appeal.The actual grounds of appeal as, of course, settled by Counsel, are dated 27 September 1995 and therefore must have reached the Respondents, at best, a week ago.We have been through a great deal of material with the assistance of Counsel. It is apparent that even now this case is not remotely ready to be argued as a case where we should admit fresh evidence.We have heard a very strong argument from Mr Crystal to the effect that all this is entirely by the way and wholly irrelevant. As he says, "the Tribunal was concerned to enquire why the Applicant had been dismissed. Was it because of his frequent absences? Was that put forward in good faith and accepted by the Tribunal, or was it because he had refused to join in a fraudulent scheme?" As to that, all the evidence was available. He was there to say why he had been dismissed. The employers were there with their evidence to say, "No, that was not the reason". The burden was on the employers.It was all heard by the Tribunal. Had the Applicant at that stage said, as perhaps Counsel for the prosecution might have said, although they did not say at the trial five years later, "I now have all the material in front of me. I have all the documents. I have made enquiries. I have all the witness statements. I am now going to prove to this Industrial Tribunal that, not merely was I invited to join in a fraudulent scheme, but that it was, indeed, a fraudulent scheme, a very cunning and crafty scheme, to extract money improperly from the authorities". It seems to us that the Chairman of the Industrial Tribunal would almost certainly have said, "We are not concerned with that. We will, of course, hear your evidence and what you have to say about it, but we are not going to try these Respondents for being fraudulent persons and say that they were concerned in defrauding the Government. If we were to do that, there would be all sorts of complications. We might very well be asked by them to adjourn the matter. We would certainly be told that they were embarrassed in giving evidence which might incriminate themselves. We should certainly be embarked on a trial which would be more appropriately carried out at the Crown Court or at the Central Criminal Court, of great complexity". One would expect that the Tribunal would say something along those lines when they had time to think about it.However that may be, we have considered that contention among the others. Our attention has been invited to various parts of the Applicant's evidence as disclosed in a 17 page statement which he made in (I think) 1992 to the police. How that can be said to be fresh evidence is far from clear. The Applicant could have given that evidence, but was constrained, he says, by the warnings he had been given and by the threat that he might incriminate himself by doing so. It is therefore not fresh evidence. It has been pointed out that in that statement he refers to various witnesses and those witnesses could corroborate his story that there was indeed a fraudulent scheme.But above all, it seems to us, this is a case where the Applicant has been advised for something like four and three-quarter years, that he should amend his appeal to us. He has most certainly been in a position to give particulars of his case under both heads for a substantial time.It is only seven days or thereabouts before the hearing of this appeal that his draft amended Notice of Appeal is sent off and we are asked to allow the amendment.We take it to be the general principle upon which all litigation now is conducted, where pleadings or notices are involved, that all such amendments should be allowed as are necessary to do justice, to allow each party to do justice to his case; with this important proviso, that such amendments must not be allowed if the effect is to do irreparable harm to the other party.Here we have a case which has been pending on appeal for an intolerable length of time. We can say no more about it than that because it was, latterly at any rate, stood out by consent. We have the Respondents confronted with the proposed amendment in the course of last week, without any warning; by a legally aided party; and the relevance of that is, of course, that party cannot be asked to indemnify the Respondents as to costs.Very serious allegations are being made, needless to say, fraud amongst them, and this amendment is put in really at the last moment. The Respondents would normally be expected to apply in those circumstances for an adjournment to consider the matter if the application is to be allowed. They say that they are anxious to proceed, if at all possible, but they complain bitterly of the injustice of the situation. They make serious allegations against Mr Townend. They point out various matters, and seek to make us put a sinister construction on them (which I may say, with respect, it is not difficult to do).We are not going to decide the case on that basis. We have decided, all of us, that it would be an intolerable injustice to the Respondents if we were to countenance this and give leave to amend. We think that there is a very great deal to be said concerning this application; much of it I have set out. I am not going to say any more about it. We would not allow an application so shortly before the hearing unless we were satisfied that it could be made without injustice to the Respondents and, on the contrary, we are satisfied that it is likely to cause great injustice to them, great hardship and great resentment. Justice involves justice to both sides and, in our view, we should refuse this application.It does seem to us that the "fresh evidence" would or might show that there was some fraud here, notwithstanding the attitude of the prosecution and the police. That would not be material, as we have indicated, to the deliberations of the Industrial Tribunal, except in this way - that it might, if used in cross-examination, affect the credit of the Respondents' witnesses.It is quite clear that no criteria for allowing fresh evidence to be adduced on appeal include "useful cross-examination material", and we are of the opinion therefore, for that reason too, that this material, whatever it may be, should be admitted. But the basic reason for our decision is that we think it would be wrong to allow an amendment at this late stage.Leave to amend is refused.