MR C M ALVARES v THE LONDON BOROUGH OF HOUNSLOW [1999] UKEAT 1155_98_1510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1155_98_1510Case No Appeal No. EAT/1155/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C M ALVARESAPPELLANTTHE LONDON BOROUGH OF HOUNSLOWRESPONDENT
Before
Mr Justice LindsayDate 15 October 1999
[1]APPEARANCES For the Appellant MS B HEWSON (of Counsel) Messrs Wilson Houlder & Co Solicitors 91 South Road Southall Middlesex UB1 1SH For the Respondents MR R GREENING (of Counsel) Instructed by: Miss C Eaton Solicitor London Borough of Hounslow Civic Centre Lampton Road Hounslow Middlesex TW3 4DN MR JUSTICE LINDSAY (PRESIDENT) : Mr Alvares appeals. The London Borough of Hounslow has a cross-appeal which is to be pursued only if Mr Alvares' appeal goes ahead. The matter came before the Honourable Mr Justice Morison, as President, for a preliminary hearing on 27th January 1999 and an order was made that says this, inter alia:
"The Tribunal orders that the appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal in accordance with the judgment of the Employment Appeal Tribunal. The Tribunal makes no order for the production of Chairman's Notes of Evidence. The Tribunal directs the appeal to be listed before the President for one day."
[2]Mr Greening, for Hounslow, before me today says that when the extempore judgment of the then President, Morison J, on 27th January 1999 is examined (and we have the transcript) it in fact discloses no arguable point of law that had attracted the tribunal on that occasion as a fit matter to go forward to a full hearing. There was, of course, an order made then and there was no appeal against that order.[3]If I were to permit Hounslow or other persons in such a position, in effect, to re-argue preliminary hearings there would, unfortunately, be a quite massive increase in the burden on this Court. I do not say that there is no jurisdiction whatsoever to come to a fresh view on whether there is a point of law to go to a full hearing, but only in quite exceptional circumstances ought such a jurisdiction to be exercised. I do not see this to be such an exceptional case. It is, however, right to say that the formula "the tribunal orders that the appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal in accordance with the judgment of the Employment Appeal Tribunal" is something of an incantation that one sees from time after time in these orders and its effect is sometimes unquestionably quite clear because sometimes the judgment of the Employment Appeal Tribunal cuts down the Notice of Appeal. Sometime that has let us say, five points but the EAT at the preliminary hearing says only point 3 is allowed to go forwards that has a useful effect. In that circumstance the words "in accordance with the judgment of the Employment Appeal Tribunal" have the practical effect that the full hearing deals only with such point as has been allowed to go forward. There is nothing, its seems to me, in the words "in accordance with the judgment of the Employment Appeal Tribunal" which will ordinarily enlarge the Notice of Appeal. Ultimately, the full hearing is to be determined on the Notice of Appeal as it then stands. Of course, quite often what happens is that at a preliminary hearing an observation is made, for example - especially where one has a litigant in person - that there is a point in his potential favour which he has not spotted and observations are made and then, of course, the well-advised or well self-advising litigant then amends his Notice of Appeal to take the point that has been indicated to him. That happens commonly enough. But there is nothing in the judgment itself at the preliminary hearing which can enlarge; it can cut down the grounds but it cannot of itself enlarge them. So, ultimately, when the matters comes to the EAT for a full hearing, it will be adjudged by the Notice of Appeal or amended Notice of Appeal as it then stands. Whatever the President or any other judge or tribunal shall have said in the meantime on preliminary hearings will not of itself have had an enlarging affect. To that extent, whilst I can understand fears that Mr Greening and his clients might have had at the very general language at the end of Morison J's judgment, he and they should have no fear, because, at all events unless and until the Notice of Appeal is amended, those words on that further occasion will have no weight in enlarging the matters that can properly be relied upon in the appeal.[4]If it is found at the full hearing, after argument, that there is no arguable point of law identified in the Notice of Appeal, well, of course, Hounslow will have a relatively easy task. I do not see that it is right at this point to look into that afresh, given the judgment of Morison J on that earlier occasion and given, also, that I could not truly come to an informed view without effectively hearing the appeal.[5]In my view the matter has to go forward but it will be judged by reference to the Notice of Appeal or amended Notice of Appeal as the case requires.