Huntingdon Life Sciences Ltd v Kirby [1998] UKEAT 435_98_0110

EAT

Huntingdon Life Sciences Ltd v Kirby

[1998] UKEAT 435_98_0110 · 1997-12-02

JUDGE PETER CLARK :

The issue in this appeal is whether the Employment Tribunal's remarks during a Chambers meeting, held in the absence of the parties but with their legal representatives present at the close of the appellant's case, amounted to a breach of natural justice, in that those remarks gave the appearance of bias against the appellants, or whether the Chambers hearing at that stage, the appellants having completed their evidence but made no closing submissions, was a proper attempt by the Employment Tribunal to facilitate a compromise between the parties.

We think that this question ought to proceed to a full appeal hearing. Not least because Mr Oldham, who appears on behalf of the appellants, has drawn our attention to an unreported decision of this tribunal with the President, Morison J. presiding, in Tsontzos v Hilton International Hotels (

EAT/348/97

) judgment given on 2nd December 1997. In that case the tribunal called in the representatives of the parties at the close of the applicant's case in a racial discrimination complaint and in giving judgment Morison J said this at page 4B-C:

"It is axiomatic that justice must not only be done, but be seen to be done. There may be rare circumstances in which it is appropriate for an Industrial Tribunal to wish to see the parties' representatives in the absence of the parties themselves. But it seems to us that this was not an occasion for taking that step. If the tribunal had anything to say at that stage of the proceedings about their state of mind in relation to the prospects of success, then it was their duty, in our view, to do it to the parties themselves in the presence of their representatives."

This tribunal allowed the appeal in that case and remitted the matter to a freshly constituted Industrial Tribunal.

For the purpose of the full hearing we shall direct that the respondent should lodge within 28 days of today an affidavit sworn by his legal adviser relating to the meeting in Chambers which arises in this case. We say that because is appears from the respondent's solicitors' letter to the Registrar dated 25th March 1998 that there may be a factual issue as to what was said during the Chambers meeting. Further, we note from the Chairman's letter dated 14th May 1998 that although he had seen the Notice of Appeal in this case and has commented on it, he had not seen the affidavit sworn by Ms Williams, the solicitor for the appellants, on 12th March 1998 and therefore had not had an opportunity to comment on the note of the Chambers meeting which is exhibited to that affidavit. Accordingly a copy of the affidavit and exhibit sworn by Ms Williams should be sent to the Chairman for his specific comments in relation to the record of the Chambers hearing prepared by the assistant solicitor, Mr Cadogan.

In view of the importance of this matter procedurally we shall direct that the case be listed before the President with a time estimate of half a day. There are no further directions.