London Borough Of Lewisham v Candy & Ors [1998] UKEAT 1367_97_2611

EAT

London Borough Of Lewisham v Candy & Ors

[1998] UKEAT 1367_97_2611 · 1998-11-26

"It is the responsibility of the parties or their advisers to ensure that all exhibits and documents used before the Industrial Tribunal which are considered to be necessary for use at the hearing of the appeal are sent to the EAT as soon as possible after the service of the Notice of Appeal and at least 6 weeks before the date fixed for the hearing of the appeal. This will enable the EAT staff to prepare in advance of the hearing sufficient copies, to number pages and to compile an index for the use of the members of the EAT at the hearing."

In this particular case there was a directions hearing on 21 January 1998 where the Employment Appeal Tribunal directed that:

"The issue of Chairman's Notes of Evidence do be adjourned to be heard at a further Directions hearing after the Respondents have filed their Answers to the Appeals."

And then there was a later direction in relation to the documents, that was 8 June 1998:

"It is directed that the Chairman do be asked to produce his Notes of Evidence in respect of the 4 Respondents and Mr Warren, Ms Siggers and Ms Townend, together with the bundle of documents presented to the Industrial Tribunal."

So the procedure that was anticipated here was that the Industrial Tribunal would be asked to produce the documents, but that does not exonerate the parties from the responsibility cast upon them quite clearly by a long established Practice Direction. The documents here are absolutely crucial to the question of what was the effective date of termination. That is an important component of an argument that goes to jurisdiction in this matter or at least in some of these matters. That a careful study of the documents is required in a case such as this is made quite clear by at least two of the authorities which the parties have drawn to our attention: see TBA Products v Morland

[1982] IRLR 331

, where a close study of the documents left the Court of Appeal in a position of being able to make only a majority decision and Crank v HMSO

[1985] ICR 1

. The skeleton arguments refer to pages that we have not got. They have not been supplied. They could have been supplied this morning apparently, but we have not had the documents in advance.

The smooth working of this court depends upon a careful and informed preparation of the matters before the hearing. Both the Judge Member and the other Members need to see the facts and the Judge, in particular, will wish to see what authorities are likely to be necessary, what points of law are likely to be presented, what needs to be researched and so on. That has not been possible in this case. Had it been a modest litigant in person on one side against the managing director of a small company on the other, the failure to provide documents punctually would have been, if not excusable, at least perhaps understandable, but here we have on one side the London Borough of Lewisham and, on the other, four employees supported by their Union.

The only course that is open to us for the effective hearing of this matter is to adjourn it generally, giving liberty for it to be restored once the Practice Direction has been complied with. If that has the result, as I would think it must have, that the parties have wasted time and money coming here today, then I will regard that with equanimity because it has to be that there should be some effective sanction to ensure adherence to the sensible Practice Direction to which I have drawn attention.

But beyond that there is another point that needs consideration in this case. I am looking at the moment at the Hartigan and Hill bundle, page 16, paragraph 9 of the Decision of the Industrial Tribunal. Similar paragraphs are found in the other cases. In that paragraph 9 and then at the beginning of 10 the Industrial Tribunal has misquoted section 98(4) and also treats the matter as if what was relevant was the Applicant's misconduct, rather than redundancy, which was the reason was required to be considered. In the opening words of paragraph 10, it says:

"10. In the light of the circumstances of this case the Tribunal considers that the Respondents acted unreasonably within the scope of section 98(4) in that: ..."

And then the matter continues and, in the ordinary way, one would have expected that section 98(4) had been properly in mind, but the immediately preceding paragraph, paragraph 9 misquotes section 98(4) and, as I indicated, refers to misconduct rather than redundancy, so quite what the Industrial Tribunal had in mind one cannot be sure.

It seems to me that that is a point which, even if the parties were to fail to take it, any EAT hearing this case would be bound to raise with the parties. If it was thus raised with the parties then the question would arise whether it should be added, by late amendment, to the Notice of Appeal, and a further question would then arise whether the Respondents to the appeal needed time fully to consider it. It seems to me that, granted that we are adjourning two of the cases for the reasons already given - namely that the documents that are crucial are not here - we may as well adjourn all four so that the Appellant can give consideration to whether it wishes to raise a point on paragraphs 9 and 10 (such as I have indicated), whether it then needs to apply to amend its Notice of Appeal so that in any event, if it does raise the point, when the matter comes back to the EAT, then the parties would have had ample time to consider both the making of the point and the answer to the point.

That seems to me to provide a further reason for adjourning these cases and, of course, there was a direction that they should all be heard together, in which case if two go away, four go away. However, reverting to the earlier point, this is a case where the documents were not produced in time within the provisions of the Practice Direction and the matter must be adjourned generally with liberty to restore once the parties have complied. [Costs of today of 4th Respondent reserved to the EAT which hears the appeal].