Hardy v TSB Bank Plc [1996] UKEAT 520_95_0702

EAT

Hardy v TSB Bank Plc

[1996] UKEAT 520_95_0702 · 1996-02-07

MR JUSTICE TUCKER : This is an application made on the date fixed for the hearing of an appeal that we should order production of the notes made by the Chairman of the tribunal which heard the original application. It is not the first time that such an application for production of the notes has been made.

The first application was made on 3rd July 1995. It was an application, as is conceded, for production of all the Chairman's notes. It was a written application which lacked any specificity. It was refused by the President on 20th July 1995. If the appellant's advisers were dissatisfied with that result they should have re-applied promptly. They did not do so. Many months went by. In due course the date for the hearing was fixed for today's date, 7th February 1996. That was after discussions with Counsel's clerks held on 8th January 1996 and the parties were notified in writing on 9th January 1996. There was no reaction until 23rd January 1996, two weeks later when a further application was made in these terms:

"We are aware that Mr Justice Mummery refused an ex parte application for the Chairman's notes of evidence (your letter of the 19th July 1995) refers.

Counsel on preparing his Skeleton Argument, has come to the conclusion that it is almost inevitable that on the hearing of this appeal the Tribunal will say that it needs the notes." [ Again, it is a reference to the full notes without any particularity. ]

"Counsel therefore wonders whether it is possible to list, in advance of the appeal, an application before the Learned Judge which could presumably be ex parte on notice."

By this time the hearing was only two weeks away. There was, as we have said, still no precision about what parts of the evidence were required. It was still a request for the full notes. Not surprisingly that application was refused, it was considered to be too late to re-apply. Today, as we have said, the application has been renewed before us.

The appeal is one where perversity is raised. In a number of grounds of the Notice of Appeal which have been adopted as a skeleton argument, it is alleged that the Industrial Tribunal were perverse having regard to a number of facts set out in the Notice of Appeal. Perversity is alleged under three headings. It is further alleged that the decision of the tribunal failed to comply with the minimum requirements of such a decision in a number of respects.

This Appeal Tribunal is always reluctant to order a Chairman who has heard the matter before to produce his or her notes of evidence. It is unfair that Chairmen should be overburdened with such duties. On the other hand, there are some cases where it is inevitable that notes should be requested. Guidance has been given in a number of cases about the appropriateness of making such a request. We are guided in particular by the decision of the Court of Appeal in Piggott Brothers & Co. Ltd v Jackson

[1991] IRLR 309

where at paragraph 13 on page 311 Lord Donaldson MR said this:

"Let me say at once that it is very important that Industrial Tribunals should not be burdened with transcribing notes of evidence which are irrelevant to any appeal on a question of law. However, I fail to understand how if an appeal is based upon or includes an allegation that the Industrial Tribunal's decision was perverse, it is possible to contemplate in allowing the appeal without having access to all the evidence bearing on the alleged perversity."

When the present application was first made, we think that had it referred with the particularity which it has now been possible to obtain it might have been differently considered. Moreover, we think that if it had been thought necessary to re-apply and that re-application had been made promptly and not left until about a fortnight before the case was to be heard, that too might have produced a different result. If there are to be applications made for the production of Chairman's notes, it is essential that they be made promptly and that they be restricted to an application only for production of those parts of the notes which are considered essential for the proper conduct of the appeal. In those two respects, there was failure here and that has led to the present difficulties.

We are extremely reluctant to make any order. Particularly where requests have twice been refused by the President. It is with some hesitation that we do so, and we only do so in order to ensure so far as we can that justice can be done to the appellant's case. We think it is important in the context of this case that the notes be obtained. But it is only in order to ensure that the appellant will feel that she has had a fair hearing that we are prepared to make the order now and at this very late stage. It will inevitably mean that this hearing will have to be adjourned. A day has been wasted. We strongly urge that the Appeal Tribunal who later come to consider the substantive appeal, consider whether any order for costs should be made in relation to the costs which have been thrown away by today's application. That will be a matter, we think, which could be more appropriately dealt with by the Appeal Tribunal who hear the matter and will be able to see and judge for themselves the validity or otherwise of the application which is made and which we now grant. But, we wish to restrict so far as we can the burden laid upon the Chairman of the tribunal.

The notes which we order to be produced are these: the evidence of Mrs Brough; and the evidence of Mrs Carroll. So far as their evidence-in-chief is concerned we apprehend that that may be included in statements or proof of evidence which were put in before the tribunal, but if not, then we order that the full notes to be produced.

In addition we direct that there should be included those parts of the evidence of the appellant of Mr Allary and Mr Hickson, which deal with the question of whether there was any intimation made to the appellant that the respondent's requirement that she return to work with Mr Allary would only be temporary.

And at the request of the respondents, we request that the notes should include evidence from any witness who dealt with the circumstances of Mrs Carroll being given a new position on 13th May 1994. And in addition, the evidence of any other witness who dealt with the question of the appellant having no choice but to resign because her position was untenable.

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MR JUSTICE TUCKER : Costs have mounted up, a day has been wasted. We feel the respondents are entitled to be paid their costs of today which have been thrown away, and we order their costs to be paid, to be taxed if not agreed, but who pays them will be a matter for discussion between the appellant and her legal advisers.