Cavannah v Borough Of Blackburn [1999] UKEAT 1484_98_3004

EAT

Cavannah v Borough Of Blackburn

[1999] UKEAT 1484_98_3004 · 1999-04-30

MR JUSTICE LINDSAY : We have before us as a preliminary matter, the appeal by Michele Diana Cavannah in the matter Cavannah v Borough of Blackburn . This is an appeal only against a decision of 30th September 1998, promulgated on 5th October 1998, and it is crucial to bear that in mind. The decision was by the Chairman alone, and it was as follows:

"In exercise of the power conferred upon me by Rule 11 of the Rules of Procedure set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, as amended, I refuse the application for a Review by the applicant contained in her correspondence dated 30 August 1998."

One has to understand the procedural background that lay behind that third application for a Review.

On 8th April 1995 Miss Cavannah lodged an IT1 complaining of unfair dismissal as at 20th January 1995. Then, over three days, 15th August, 2nd and 3rd October 1995, there was a hearing before a full Employment Tribunal of three members. On 31st October 1995 they announced their decision, which was formally promulgated on 4th January 1996. Their decision, which one might call 'the substantive decision', says:

"The unanimous decision of the Tribunal is that the applicant was fairly dismissed."

That was followed on 6th February 1996 by the Chairman declining a review of that decision of 31st October 1995 on the ground that it had no reasonable prospect of success. That we might call 'the first review attempt.

On 3rd May 1996 Miss Cavannah's appeal to the EAT against the substantive decision was dismissed. That did not stop proceedings.

In November 1997 Miss Cavannah raised a second review attempt. On 20th November 1997 the Chairman declined the second review attempt and his decision as to that was promulgated on 21st November 1997.

On 16th March 1998 Miss Cavannah appealed to the EAT as to that second review attempt. Her appeal as to the second review was declined and dismissed on that day.

On 30th September 1998 Miss Cavannah launched her third review attempt. It was that which was declined upon 30th September 1998, and it is that decision which is now before us on appeal.

One needs to have a brief look at the Rules in the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 so far as they concern reviews. The relevant Rule is Rule 11. Rule 11(1) says this:

"Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that:-

. ..

(e) the interest of justice require such a review."

One notices the power to grant a review can either be invoked by a party or by the tribunal of its motion. We are only concerned here with the case where the request for a review is by the party itself. Sub-rule (4) says:

"An application for the purposes of paragraph (1) may be made at the hearing. [ -we are not concerned with that - ] If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."

So the ability to review the substantive decision of 31st October 1995 ran out 14 days after the promulgation of that decision on 4th January 1996. In other words, ever since 19th January 1996 there has been no jurisdiction to review the substantive decision. Even if Miss Cavannah at her third review attempt had had massively impressive grounds for a review, the Chairman, in point of jurisdiction, could not have granted it. The legislature has chosen a system under which once the fourteen days that we have just mentioned has expired, then the only way in which a change can be made in the substantive decision is by appeal, first of all to the EAT, and, in appropriate cases, further appeals to the Court of Appeal and to the House of Lords. As we have indicated, the appeal to the EAT has already been exercised and already has failed. The Chairman in the matter before us came to the only conclusion he could have come to.

Miss Cavannah's appeal to us, which can only be in point of law, is, I am afraid, utterly hopeless. Any further attempt to review the substantive decision will equally or even more so be utterly hopeless. We have, we think, no present power to stop her from launching utterly hopeless procedural steps. But we do encourage her to reflect, before she does so, upon what the consequences are of launching utterly hopeless proceedings. Every time such a proceeding is launched, time is taken is up and resources are taken up that would be better spent dealing with cases that do have some hope. It is in fact a selfish process to persist in mounting utterly hopeless applications, because it denies or delays justice to others. We hope that Miss Cavannah reflects upon that before she takes further steps. But we dismiss the appeal even at this preliminary stage as disclosing no arguable point of law.