Ball v Balfour Kilpatrick Ltd [1996] UKEAT 823_95_2005

EAT
Ball v Balfour Kilpatrick Ltd
[1996] UKEAT 823_95_2005 · 1996-05-20
MR JUSTICE MUMMERY (PRESIDENT) : This is a meeting for directions which has been convened to determine how this appeal should proceed.The Industrial Tribunal held at Liverpool on 2nd February and 28th March 1995 unanimously decided that the applicant, Mr Ball was not unfairly dismissed. His application therefore failed. The reasons explaining why the application failed were notified to the parties on 16th June 1995.Mr Ball was disappointed with the result and appealed by Notice of Appeal served on 27th July 1995. One of his grounds of appeal in paragraph 7 said that the tribunal erred in holding that in the absence of an agreed procedure the selection criteria adopted were as objective as it was possible to adopt when making a selection for a redundancy. That is a reference to paragraph 14(v) of the extended reasons. The ground of appeal continues:
"The criteria themselves are set out at page 9 of the Applicant's bundle and include factors such "fit in", "independent to work", "positive attitude - demeanour", such criteria are inherently subjective."
The case was listed for a preliminary hearing by this tribunal to decide whether the appeal raised an arguable question of law. The appeal tribunal on 27th November 1995, having heard Mr O'Dempsey of Counsel on behalf of Mr Ball, directed the appeal to proceed to a full hearing and also made this direction:
"THE TRIBUNAL DIRECTS that the Chairman's manuscript Notes of Evidence do be provided."
Mr O'Dempsey, who appears again today for Mr Ball, said that this direction related to the points in his Notice of Appeal and in his skeleton argument of 22nd November 1995 about the complaint that the tribunal had erred in law in holding that the criteria were objective. His case was that they were inherently subjective. He wished to elaborate on that argument by contending that the criteria identified in the applicant's bundle had been subjectively applied to this case and that the tribunal had made an error of law in their finding on the issue of objectivity of the criteria.A problem has arisen because the Chairman of the tribunal has done precisely what he was asked to do. He supplied to this tribunal on 17th January 1996 a photocopy of his manuscript notes. Like most manuscript notes they are difficult to read. The Chairman of a tribunal makes notes of the evidence for the purposes of deciding the case. He is under a duty to make those notes, but he is under a duty to provide a verbatim transcript of everything that is said by the witnesses. The notes are rarely used on any other occasion than the making of the decision in the Industrial Tribunal. This tribunal has made it clear in a number of recent decision and in a recently issued practice direction, that notes of evidence are not necessary for most appeals, because appeals are confined to questions of law. You do not normally need notes of evidence to argue a question of law. There are exceptions, such as where the ground of appeal is that the decision of the tribunal on the facts is contradictory of uncontradicted evidence given to the tribunal. They may also be necessary where a tribunal makes a finding of fact which is not supported by any evidence. If a finding of fact is supported by some evidence, it is not an error of law for a tribunal to choose to base their finding of fact on that evidence rather than on conflicting evidence. It is the function of the tribunal to decide disputes of fact.In this case I have grave doubts whether the Appeal Tribunal at the preliminary hearing should have ordered the production of any of these notes in any form. But it is not for me to question what a tribunal of three members has decided. They were persuaded by Mr O'Dempsey that some of notes were necessary.Mr O'Dempsey, at this meeting for directions, is not seeking to support an application for all the notes to be typed up. What we have done is to number the pages of notes up to page 13. Mr O'Dempsey has identified in those notes two witnesses evidence which he says are needed by him to argue the point on the subjectivity of the application of the criteria on redundancy. The notes identified are the cross-examination and re-examination of Mr Clay and the examination-in-chief and cross-examination of Mr Hamel. He pointed to particular passages. I think that it is not practicable in this case to pick out particular passages within Mr Clay's cross-examination. It is better to order that the Chairman now be requested to produce a typed up version of the notes of Mr Clay's cross-examination and re-examination and of Mr Hamel's examination-in-chief and cross-examination.The Chairman has helpfully informed the tribunal that he has dictated these notes on to tape and they are available for us to listen to it. That is a helpful suggestion but in fact the logistics are not convenient. It is preferable, in my view, for the normal procedure to be followed. That is for the Chairman to make arrangements for the notes which he has made and which he has kindly dictated to be typed by the secretarial assistance available in the Industrial Tribunal and made available. He can then check the typing. When they are submitted to us we can make them available to the parties for such use as they can properly make of them at the hearing.The order on this meeting for direction is that the Chairman be requested to provide a typed copy of his notes of Mr Clay's cross-examination and re-examination, and Mr Hamel's examination-in-chief and cross-examination.