Osei v Princess Grace Hospital [1999] UKEAT 1128_98_3003

EAT
Osei v Princess Grace Hospital
[1999] UKEAT 1128_98_3003 · 1999-03-30

JUDGE LEVY QC :

This is an appeal by Mr K Osei ["the Appellant"] against a decision of an Employment Tribunal sitting at London (North) on 22nd April 1998. The unanimous decision of the Tribunal was that the Appellant was fairly dismissed. The decision was remitted to the parties on 30th June 1998. On 11th August 1998 a Notice of Appeal by the Appellant was sent by Solicitors instructed by him to this Tribunal.The grounds on which this appeal is brought were stated to be as follows:
"(A)The tribunal refused to allow the appellant to be represented by a representative of his choice [ This ground has been withdrawn. ]
(B) The tribunal refused to allow the appellant to introduce evidence he had prepared in writing with regard to a Coroner's hearing and other matters with which the appellant intended to attack the credibility and motive of the witnesses for the respondent

(C) Further and other grounds of appeal are reserved."

As to ground (C) we have drawn to the attention of Counsel who appears for the appellant today to the Practice Direction Employment Appeal Tribunal 1996, paragraph 2(6) which reads:
"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."
As we have said this Notice of Appeal was served on behalf of the appellant by solicitors and is dated as long ago as 11th August 1998. No application has been made for an amendment prior to that which Mr Lo wanted to present to us at today's hearing. Such an amendment, prima facie, raises new grounds and is presented out of time. We pointed out to Mr Lo that any application to amend has to be considered by the Respondents before leave to amend could be given.We return to paragraph (B) of the Notice of Appeal. The Appellant swore an affidavit dated 28th September 1998 in which he went far beyond the matters set out in the ground which is set out in his Notice of Appeal. To that affidavit, comments have been received from the Chairman. We think it would be useful to read the Chairman's comments:
"1. Before the industrial tribunal both sides were represented by Counsel. Contrary to normal directions each side produced its own bundle. The respondent's case was put first and the tribunal referred to the Respondents bundle. In cross-examination the applicant's Counsel was entitled to refer to the applicant's bundle. In giving his own evidence the applicant would have been referred to his own bundle by his Counsel where appropriate. At no time did the tribunal refuse to look at the Applicant's bundle.
2. We took account of the evidence given by the Applicant and matters contained in his bundle relating to his medical condition, and our conclusions about his non-attendance at the disciplinary hearing are contained in our decision. It is clear from our decision at para.4(iv) that we were given, and read, his written statement and that we regretted he had not supplied a similar statement to his disciplinary hearing.3. At no time did we refuse to look at any documents. Prior to the hearing a duty chairman had declined the Applicant's request for discovery of matters relating to 1992. In addition, the first six paragraphs of the Applicant's statement which also related to 1992 were deleted, with the consent of his representative.4. The Respondents evidence was concluded in the morning and consisted of two witnesses. My notes disclose that Mr Smith was asked one question by the tribunal, Mrs Hutton two or three. The Applicant began his evidence at 2 pm, his cross-examination began at 3 pm, the tribunal asked four questions between 3.30 pm and 3.35 pm and there was no re-examination. The evidence was not interrupted in the way Mr Osei suggests."We return to the ground of the Notice of Appeal which seems to refer to a refusal to introduce matters relating to a Coroner's hearing. At this stage we do not know whether this was part of the matters which were excluded. However we have all read the Extended Reasons of the Employment Tribunal with care, as well as the comments of the Chairman and the Affidavit of the Appellant who was represented by Counsel below. We have no doubt at all that the Tribunal was entitled to come to the decision which it did on the evidence which was before it. We are satisfied that if the Employment Tribunal refused to allow the Appellant to introduce the evidence which he mentioned, it was evidence which had been properly excluded by the Tribunal at an earlier stage and all the evidence which was properly before the Employment Tribunal was considered by it. In these circumstances, in our judgment, there is no arguable case for the Appellant to pursue on ground (B).In the circumstances, we thank Mr Lo for his submissions and dismiss the appeal at this stage.