Hannigan v Scottish & Newcastle Retail Ltd [1997] UKEAT 1109_95_2404

EAT
Hannigan v Scottish & Newcastle Retail Ltd
[1997] UKEAT 1109_95_2404 · 1997-04-24

JUDGE D M LEVY QC :

In an appeal by Mr Hannigan against a decision of the Industrial Tribunal sitting at London (North) an appeal was sealed on 18 October 1995.The matter came up under the ex-parte system for a preliminary hearing on 4 November 1996. On that date Mr Pullen, of Counsel appearing for the Appellant, sought leave to add a ground to the Notice of Appeal. That ground reads as follows:

"Failure to award the Appellant a basic award of compensation

(10) The Industrial Tribunal, in finding the Appellant was not entitled to a basic award of compensation by reason that he had received from the Respondent a sum equivalent to a statutory redundancy payment [there is a reference to the paragraph in the IT Decision] misdirected themselves in law.(11) The proper application of section 122(4) of the Employment Rights Act 1996 only provides for a basic award of compensation to be reduced by a payment purporting to be a statutory redundancy payment in circumstances where the employee's dismissal was in fact by reason of redundancy [the authority referred to]. In the instance case, however, the Industrial Tribunal specifically found that there was not a genuine redundancy situation and the Appellant's position was not redundant. In view of these findings, section 122(4) of the 1996 Act had no application in the proper assessment of compensation and the Industrial Tribunal thereby erred in law by failing to award the Appellant a basic award of compensation.(12) The amount of the basic award to which the Appellant would be entitled is £820.00 and the Appellant accordingly seeks an Order that the Appellant's compensation be increased by that amount."When the matter came before the Industrial Tribunal on the ex-parte basis, upon that application the Tribunal ordered it be granted. The Respondents, who were not at the ex-parte application and have not appeared on the full hearing this morning, have put in this argument on the amended Notice of Appeal.
"3.3 The amendment to the original notice raises an entirely new point to the Appeal. It does not add to or clarify the existing grounds, but raises an entirely new point regarding the basic award.
3.4 Accordingly, we submit that this Tribunal's order to allow the amendment should be overturned. We say as follows:-3.4.1 no notice was given to the Respondent of the intention to amend, notwithstanding that the original Appeal had been lodged in October 1995. The amended Notice of Appeal was dated 12 December 1996, the full reasons for the decision of the Industrial Tribunal having been promulgated on the 30 August 1995;3.4.2 the amendment is 13 months out of time;3.4.3 the amendment is not a true amendment but an entirely new ground of Appeal;3.4.4 the Appellant appears not to have offered any explanation for the delay, nor does it appear that this Tribunal considered the application to amend on these terms;3.4.5 alternatively, if the amendment is treated as such (rather than a new appeal) then paragraph 2.6 of the Practice Direction (Employment Appeal Tribunal - Procedure) should be taken into account. There is no absolute right to appeal and ' ... amendment can only be made pursuant to an Order on an Interlocutory Application and that should be made as soon as the need for amendment is known'.3.4.6 We submit that this is not a situation where new factors have come to light. There is no reason why amendment within time was not reasonably practicable."Then, there are further submissions on the merit of what is contended and the submission that the ground of appeal should not be allowed.Mr Pullen, who appeared on the ex-parte hearing, tells us that the point was overlooked when the Notice of Appeal was drafted. The Rule itself reads as follows. This is Rule 2(6) of the Practice Direction (Employment Appeal Tribunal Procedure) 1996 .
"It is not permissible for the parties (either the Appellant in his Notice of Appeal or the Respondent in the Respondent's Answer) to reserve a right to amend, alter or add to any pleading. No such right exists in the Rules. Amendment can only be made pursuant to an order on an interlocutory application and that should be made as soon as the need for amendment is known."
It often happens that, on the hearing on an ex-parte application, an application to amend is made. Sometimes it happens because a point is spotted by the Tribunal or by the member of ELAAS, who is so helpfully often here, to assist an Appellant and the new ground is raised. Quite frequently at that stage leave to amend is granted, subject to the Respondent being given the opportunity to argue against such amendment at the hearing of the Appeal.There was a time delay here, but we can see no hardship to the Respondent in dealing with the extra point which is raised which seems, as a matter of law, to raise an issue which should be raised on appeal.We accept that it might have been made earlier, but given the time which has passed since notification of the ground of appeal was made and the time the Respondent has had to deal with it, we think it would be proper to allow the Appellant to advance that additional ground of appeal at the hearing before us today.Accordingly, if, in so far as is necessary, we give further leave to the Appellant to amend his Notice of Appeal.