Preston v Pennington [1997] UKEAT 852_96_0603

EAT
Preston v Pennington
[1997] UKEAT 852_96_0603 · 1997-03-06
MR JUSTICE KEENE : This is a preliminary hearing to determine whether the appellant has shown an arguable point of law which justifies allowing this appeal to go forward to a full hearing. We say straight away that the appellant's representative has written on his behalf to say that he would like it to be dealt with on the written representations which have been submitted and there is no appearance as such today. But in the light of the letter 24th February 1997 it is clear that this appeal is still pursued and it is not a case where it should be dismissed for want of prosecution. We will therefore deal with it on the merits of the papers before us.The decision itself was that of a Chairman sitting alone at Manchester and is dated 11th June 1996. The respondent had brought a complaint under the Wages Act 1986 claiming four days paid work from 5th to 8th December 1995 inclusive. That amount, after deductions, came to a net figure of £96.59. She had worked for the appellant as a carer because the appellant himself is paralysed and requires constant attention. Her employment with the appellant began on 2nd October 1995 and continued until it was terminated on or around 15th December of that same year. The last day on which she worked was 8th December 1995.She was paid weekly on the Thursday or Friday of each week, and her evidence was that the last pay she received was on 8th December 1995, a sum of £76.99 which was for the week ending 1st December 1995. The evidence from the appellant was that the amount paid to her on 8th December was £96.59 and that she had been paid a week earlier the amount of £76.99 to which she had referred. Accordingly the dispute, as the tribunal noted, was simply whether the respondent, as she now is, had received the £96.59.There was a straight conflict of evidence on this, she saying that she had not been paid, and the appellant saying that she had been paid. The tribunal's decision concludes in this fashion:
"8. I found Mr Preston's explanation for the letter of 14 December to be unsatisfactory and I found the applicant [ now the respondent ] to be a credible witness. I preferred her evidence to that of Mr W J Preston and I find that she was not paid the final sum of £98.59 and accordingly she is entitled to an order for payment of such sum."
The appellant then applied for a review by letter dated 11th July 1996. In that letter he alleged bias by the Industrial Tribunal and alleged in effect that an adjournment had been sought because of the illness of the respondent, Mr C Preston, but had been refused. That review was itself was refused, with reasons dealing with the various matters raised, by a decision dated 31st July 1996. In those reasons the Chairman stated that no adjournment had been sought, and that at one stage in the hearing Mr W J Preston, who was representing his son the appellant, had reduced the respondent to tears.In the Notice of Appeal the appellant alleges a denial of natural justice because his representative, Mr W J Preston, had not been allowed to question the respondent about allegedly false evidence. He also alleges bias by the Chairman and repeats a number of the points raised in the application for a review.Because of the allegation of bias and other alleged errors in the procedure before the tribunal, an affidavit in support has been obtained from the appellant's representative, Mr W J Preston. In it he states as follows:
"I did then at the beginning of this tribunal hearing tried to give the Chairman Mr R Peters (sitting alone) medical evidence to support Mr Craig Prestons (Respondents) illness and because of this illness under no circumstances could Mr Craig Preston travel to this tribunal hearing or could he dictate a statement to be wrote on his behalf to be put before the tribunal due to the illness he had.
I myself also tried to explain to the Chairman that the (Respondent) Mr Craig Preston (Respondent) was a very very severely disabled person physically.Mr R Peters Chairman on hearing that evidence got very aggressive towards me, stating that this matter had gone on long enough and to get on with it."His affidavit later continues as follows:
"When I was trying to question the applicant on evidence she was giving on oath and which I could prove were lies, the applicant started crying, the Chairman Mr R Peters, stopped me from questioning or putting evidence to the applicant by saying "quote" I was brow beating the applicant "unquote"."
The Chairman has himself commented on this affidavit. He states:"Although I recall that Mr W J Preston ("Mr Preston") said that his son was ill and could not attend, Mr Preston made no application for postponement so that his son could attend the hearing. Mr Preston confirmed that he represented his son and that he (Mr Preston) could give all the evidence necessary to deal with the case. I considered that it was appropriate to proceed and accordingly I proceeded to hear the case.I do not recognise the description of me as being very aggressive. I could well have said that we should get on with hearing the case."Later in his comments the Chairman says this:
"I recall that Mr Preston failed to appreciate a number of matters namely: (i) what was in issue
(ii) the distinction between on the one hand a robust and searching cross examination and on the other intimidation of the witness.(iii) that I could only take the evidence of one person at a time.. .. I recollect that I had to interrupt Mr Preston at the stage of questioning the applicant on more than one occasion to ensure that he understood what was in issue, that his questioning was relevant to the issues and his questions asked in an appropriate manner. I also had to explain that I would take his evidence after having heard all the applicant's evidence.Unfortunately Mr Preston did not listen, failed to understand or just ignored my comments. In particular, he did not modify his manner of questioning and eventually I issued Mr Preston with formal warning of the powers available under Rule 13 of the Industrial Tribunal Rules of Procedure 1993. I may well have described the manner of Mr Preston's questioning of the applicant as "brow beating". That warning was issued after the applicant had been reduced to tears during the questioning of her by Mr Preston."Finally , the Chairman says:
"Mr Preston was not denied the right to ask any relevant questions. He was given a full opportunity to give his evidence. He called no witnesses. There was no bias on my part. I did not abuse my powers as Chairman."
A number of documents have also been submitted by the appellant on the issue itself which was before the Industrial Tribunal.We deal first with the arguments raised as to bias and a denial of natural justice. Part of those is the alleged refusal of an adjournment, if indeed that is the allegation now being made. We note that the affidavit of Mr Preston describes his son as very very severely disabled. He was apparently also experiencing breathing difficulties on the day of the hearing. But we find it entirely credible that, as the Chairman states, the appellant's representative at the hearing did not seek an adjournment as such. An adjournment may not have been of much help, given the problems from which the appellant himself was suffering. In any event, although the appellant's father refers to having tried to give the Chairman medical evidence, he does not allege that he actually asked for an adjournment, and in those circumstances we cannot see that anything went wrong procedurally in that respect.So far as bias is concerned, it is of course important that there should not only be justice, but also that there should clearly be seen to be justice in the way in which such proceedings as these are conducted. Where a lay person without experience of such hearings appears before a tribunal problems can easily arise. Nonetheless, it is the duty of the Industrial Tribunal Chairman to control the proceedings, to ensure that they are conducted expeditiously, and that irrelevant questions are avoided. It is also his duty to make sure that the manner in which any cross-examination takes place is a proper one.We are satisfied from what we have read that, while the appellant's representative may have reacted to the Chairman's interventions, those interventions themselves did not show bias or the appearance of it, and did not go beyond the extent which was appropriate in the circumstances. The Chairman had a discretion as to how the proceedings were conducted. The mere fact that he found it necessary at one stage to issue a formal warning of the powers available under Rule 13 to him gives us a clear indication at to what was happening in the course of the proceedings. The conclusion we have reached upon reading all the statements from both sides, in relation to the way in which these proceedings were conducted, indicates to us that the Chairman was doing his best to carry out those duties to which we have referred. We cannot see that there is any arguable point that the Chairman in this case either showed bias or the appearance of bias, or that there was any other procedural irregularity in the way in which these proceedings were conducted.We cannot see either that there is any arguable point that there was a breach of natural justice in this case. It seems to us that the appellant's representative was afforded a proper opportunity to present his evidence and to call any witnesses whom he wished to call. His ability to cross-examine the then applicant seems to us to have been achieved subject to the necessary controls over the way in which he carried out that cross-examination.So far as any challenge to the decision of the tribunal itself is concerned and the underlying issue of fact as to whether the debt was still owing or not, a number of documents have been produced to us on behalf of the appellant. Whether or not that money had been paid to the applicant is, par excellence , a matter for the Industrial Tribunal. It is a matter of fact and one which we would not interfere with unless the decision which the tribunal arrived at was one to which no reasonable tribunal properly directing itself could have come. We cannot say that on the basis of the evidence we have seen that that situation is even approached here. It follows that no arguable point of law is disclosed in respect of that aspect of the case.In all those circumstances, no arguable point of law is revealed in this appeal, and it will therefore be dismissed.