Doegar v Herbert Mueller Ltd (In Receivership) & Anor [1995] UKEAT 867_93_1201

EAT
Doegar v Herbert Mueller Ltd (In Receivership) & Anor
[1995] UKEAT 867_93_1201 · 1995-01-12
MR JUSTICE MUMMERY (PRESIDENT) : On 30 March 1994 the Tribunal heard an appeal by Mrs Doegar against the decision made by the Chairman of the Industrial Tribunal at Nottingham on a preliminary hearing. Judgment was reserved and delivered on 19 May. It is unnecessary to repeat the detailed account in the 13 page judgment of the background facts, issues and law argued and decided on that appeal.The appeal by Mrs Doegar was dismissed. The Appeal Tribunal found in favour of the First Respondent, the receiver of the Company whom Mrs Doegar was seeking to make personally liable for having adopted a contract of employment which she had claimed to have with the Respondent Company.On 7 July Mr Doegar, who has represented his wife throughout these appeals, made an application by letter for leave to appeal to the Court of Appeal against the Order of 19 May. The application for leave was refused. On 1 August Mr Doegar submitted, on his wife's behalf, an application for a review of the Orders made by the Appeal Tribunal on the ground that they were wrongly made as a result of errors on the part of the Tribunal or its staff and also on the ground that the interests of justice required such a review.The language of that letter reflects Rule 33 of the Employment Appeal Tribunal Rules 1993 which gives the Appeal Tribunal power, either of its own motion or on application, to review any order made by it and on such review to revoke or vary that order on one of three grounds. The first ground is that the order was wrongly made as the result of an error on the part of the Tribunal or its staff. The second is that a party did not receive proper notice of the proceedings leading to the order and the third is that the interests of justice require such review. The first and third ground are relied on by Mr Doegar.The decision to grant or refuse a review is a matter of discretion for the Tribunal. Two decisions of the Tribunal make it clear that that is not an unlimited discretion. The first case cited by Mr Gunstone, who appeared for the First Respondent, is Stannard & Co (1969) Ltd v Wilson [1983] ICR 86 where Browne-Wilkinson J said at page 87G-H:
"We wish to make it absolutely clear that the cases in which an application to review our decision is appropriate must be very few indeed; the only reason that this review has been entertained is because it goes to jurisdiction. In a case where it is said that our decision is wrong as a matte of law, the right place to put right that error is the Court of Appeal. It is not a correct practice to come back to this tribunal to review its decision."
A similar approach was stated by Wood J in the decision Blockleys Plc v Miller [1992] ICR 749 at page 756A-C. After referring to cases on the powers of review both in the Industrial Tribunals and the Appeal Tribunal Wood J stated this:
"It is clear that in the light of the general principles of law applicable, the power of review whether in an industrial tribunal or in this appeal tribunal must be exercised within a very narrow margin."
He gives instances from the cases: for example, where the issue of jurisdiction arises or where there has been a fundamental procedural error or lack of due process; where there has been fraud appearing very soon after the decision and simple cases of minor errors or omissions such as would cause one to use the slip rule.There are a number of other cases in which the review panel may be exercised, but it is clear from those two authorities that it is not proper to review a case simply on a re-argument of the same points made at the original hearing. It is for the Appellant to establish that there are grounds in this case, other than the points argued and decided in the appeal last year, which should lead us to exercise our discretion to grant a review. As to the first of the two grounds, that the Order was the result of errors on the part of the Tribunal and staff, no case has been made out. There is no argument by Mr Doegar that there has been anything in the nature of a clerical error or procedural slip by the Tribunal in the way that it dealt with the appeal. The thrust of Mr Doegar's arguments have been that there ought to be a review in the interests of justice.The detailed basis of the complaints are summarised in the sections of the submission which accompanied the letter of 1 August 1994 seeking a review. The arguments can be summarised as follows. Mr Doegar pointed out, in relation to the evidence before the Industrial Tribunal, that the receiver's evidence had been that he was not aware of Mrs Doegar's employment from the records of the Company, from her or otherwise until the receipt of a letter dated 5 February from Mrs Doegar's solicitors. It was for that reason that he had not sent the letter of 7 December which he sent to all the Company employees. He submits that both the Industrial Tribunal and this Tribunal made a mistake in accepting the receiver's evidence. Mr Doegar has referred us to a number of documents in an attempt to persuade us that the Industrial Tribunal should have found as a fact that the receiver knew of the existence of the contract of employment and omitted to terminate it and causes the Company to continue it or otherwise adopt the contract so as to be personally liable.He makes other detailed points on the evidence. He has referred us again to the affidavit sworn by Mrs Parnell, which was available to the Industrial Tribunal, confirming regular monthly salary payments to Mrs Doegar over a period of 4 years up to the receivership. The documents which we have been shown in the form of pay slips finish at the end of November 1992. The receivership did not start until 4 December 1992. There is nothing new in the evidence drawn to our attention today that was not before the Industrial Tribunal. The important point is that there is no evidence either before the Industrial Tribunal or before this Appeal Tribunal to show that the receiver made payments to Mrs Doegar or gave her instructions, or sat back watching her work in the knowledge that she must be doing it in pursuit of some contract of employment which he then acquiesced in. Mr Doegar submitted that it was for the receiver to show what he did know or ought to have known of Mrs Doegar as an employee and if this evidence, which he has drawn to our attention, had been properly appreciated a conclusion would have been made that the contract had been adopted.Mr Doegar submitted that the interests of justice required a review because the documents showed that there were errors and omissions in the Tribunal's decision and in our decision. He submitted that false and misleading evidence had been given by the receiver; there had been a refusal by the receiver to provide documents and explanations reasonably required. In summary he submitted that the review should be granted because it was made out on the documents and the evidence that the contract had been adopted.Some of these points were dealt with more fully in the submissions Mr Doegar made this afternoon. He emphasised again that the case was proceeding on the assumption that there was a contract of employment. He relied on the fact that there was no notification of a dismissal of Mrs Doegar until 17 February; that the contract therefore continued until then; that the receiver must have known about it; that in accordance with the salary records payments were made and they supported the existence of a contract. In all the circumstances the only correct decision was that the contract had been adopted.Against this Mr Gunstone repeated many of the arguments before us at the hearing last March. It is unnecessary to repeat what he said about the position of the receiver, the findings of fact by the Tribunal and the relevant law concerning adoption of contracts of employment by receivers. Mr Gunstone's main point, which we accept, was that Mr Doegar had failed to put before us today, any new material which would justify a departure by way of review from our earlier decision. He submitted that what Mr Doegar had done was to fight the appeal; having lost it, he attempted to obtain leave to appeal to the Court of Appeal; he failed to obtain that leave and then sought to re-argue the same case on an application for a review.We agree with Mr Gunstone that, having looked again at the evidence and arguments examined last year, we are driven to the same conclusion that the Industrial Tribunal did not err in law when it rejected Mrs Doegar's claim. All the evidence and findings of fact made by them point to the conclusion that there was no adoption of the contract. Mr Doegar is unable to point to any evidence that the receiver did any positive act which could be regarded as an adoption of the contract or that he acquiesced in a situation so as to indicate an intention on his part to adopt the contract.For those reasons we do not exercise our discretion to grant a review because the interests of justice do not require such a review. We have heard all the arguments before. We reached a decision last March for reasons given in the judgment of 19 May. We have not been persuaded that there is anything new which would cause us to depart from that conclusion. The application for the review is dismissed.The review application has been dismissed for the reasons given earlier. We are now presented with an application by Mr Gunstone on behalf of the receiver for costs of this review application to be paid by Mrs Doegar. The jurisdiction to order costs is contained in Rule 34 of the Employment Appeal Tribunal Rules 1993 and it provides:
"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.
(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."Mr Gunstone's submission is that we should order costs because the application was unnecessary, improper or vexatious. It was one or more of those things because it was an attempt by Mr Doegar, on behalf of his wife, to re-open the appeal hearing concluded last year. A great deal of work was caused on the application for review by his submitting many documents of limited or no relevance. Over the last few weeks 7 bundles of documents have been prepared for use on the review. At the end of the day no fresh material, evidential or legal, has been put before the Tribunal which would justify the grant of a review in the interests of justice.As to whether the order for costs should be of a specified sum or should be of an amount to be taxed, Mr Gunstone said that he was not asking for the matter to be taxed. When we asked him for an estimate of the amount of costs, he estimated it at £2,000 having regard to hours spent at the firm's charging rate of £120 per hour. Mr Doegar opposed the application and pointed to a recent fax which he said we should take into account. This was a fax sent by him to Mr Gunstone's firm. He said that he received no response to that. That is a factor we should take into account in deciding whether to order costs.This review was unnecessary and it was vexatious. There was no basis for it. We should order costs. We have decided that the amount should be £750 to reflect the work done on behalf of the Respondents in resisting the unsuccessful application.The order will be that the application for review is dismissed and that Mrs Doegar pays the sum of £750 costs to the Respondents.