London Borough Of Hackney v Chan [1997] UKEAT 431_96_1704

EAT
London Borough Of Hackney v Chan
[1997] UKEAT 431_96_1704 · 1997-04-17
MR JUSTICE MORISON (PRESIDENT) : This an application at this directions hearing in relation to the Chairman's Notes of Evidence. My distinguished predecessor when asked in writing to make an order for the Chairman's Notes of Evidence to be produced, acceded to that request. I take the view that the essence of what is happening this morning is that I am being asked to review that earlier decision in the light of the representations which were made by the Industrial Tribunal Chairman who objected to providing his Notes of Evidence; largely on the grounds that so far as he could tell from looking at the Notice of Appeal they could not legitimately have been required of him.It seems to me, with great respect to my distinguished predecessor, who I suspect did not have the benefit of having his attention drawn to the relevant matters, that this is not a case where Notes of Evidence are required.The decision of the Industrial Tribunal is set out at length. There is in fact going to be a hearing of an appeal against that decision, and therefore I will say little about the merits of the decision. But in their Notice of Appeal, as their second ground, the appellants, the London Borough of Hackney, who lost a race discrimination case and unfair dismissal case brought against them by the respondent to this appeal, Mr Chan, in ground 2 alleged that:
"At paragraph 11 the tribunal finds that Mr David issued the Notice of Complaint after consulting with Mrs Collins at paragraph 14 finds that Mrs Collins "had a hand in" the issue of that Notice. The said findings of fact were unsupported by evidence and/or perverse."
It seems to me having looked at the decision with care, that there was plenty evidence on which the Industrial Tribunal were entitled to conclude, despite denials by those two named persons, that indeed Mrs Collins had played a part in the decision to issue the Notice of Complaint. The Notice of Complaint was, so the tribunal of fact found, issued as a tactical manoeuvre in response to Mr Chan's grievances raised against Mrs Collins and a third person. It was, if you like, a tactical manoeuvre designed to protect those against whom he had raised the grievance; and it seems to me, having regard to the findings in the tribunal decision of the close supervisory control which Mrs Collins had over her immediate inferior Mr Davis, that it was quite open to them to conclude, despite their denials, that Mr Davis would not have issued a Notice of Complaint as a tactical manoeuvre without first having consulted Mrs Collins. It was the applicant's case that Mr Davis was at all times under her control, carrying out her orders, and in the position, as it were, as the tribunal record of a "hatchet man". She certainly approved the Notice of Complaints two days later. It is observed by the tribunal that before issuing the Notice of Complaint Mr Davis had consulted the personnel department. It seems to me, therefore, that even if there were denials by those two witnesses, and that is what the Notes of Evidence show, that does not get ground 2 off the ground, because a tribunal is entitled to infer that Mrs Collins was party to the issuing of the Notice of Complaint, if from the totality of what they heard and saw of the witnesses, they disbelieved her evidence when she denied it. I therefore take the view that the Notes of Evidence will not assist on this point, and I will review the decision and will say that the Notes of Evidence are not required for the purposes of the hearing of this appeal.It will be listed before me and two lay members. We will deal with it initially as though it were a preliminary hearing to determine whether there is any point of law raised in the Notice of Appeal; and if it is not, we shall dismiss it.I should say to you that were that to happen, the tribunal will consider, as it usually does on occasions like this, whether a cost's order would be appropriate.So far as today is concerned, it arises in this way, for reasons which I do not think are good reasons, Counsel has not been in a position to address argument to me on whether the grounds of the Notice of Appeal raise any arguable point of law. I say not good reasons, bearing in mind his instructing solicitors were aware of this application on 1st April, and in my view, could have instructed Counsel to have presented arguments on this point well within time.As a result of that failure, we are going to have to have another day's hearing, where these points can be fully argued. It is a matter of importance, there is a lot at stake. So we have two days instead of one. What order for costs should I make?Mr Fraser-Urquhart accepts that I can make an order that the costs of the next occasion should be paid for by his clients, or I could make an order that the costs of today should be paid by his clients. It seem to me logically that as part of today has been usefully used and would have had to have been used in any event, that I should make an order in relation to the next occasion. But it seems to me that logic is not necessarily the guiding factor, I think that proper justice would be done between the parties if I order that the costs of today should be paid for by the Council in any event, because if the case had taken place on 28th April, which is the date of the adjourned hearing, then it would have been sufficient to have dealt with questions of Notes of Evidence and the preliminary hearing at the same time. For these reasons, because the London Borough of Hackney have been guilty, in my view, of unreasonable conduct in relation to this matter, they will pay the costs of today to Mr David Chan, to be taxed if not agreed.