HIBERNIAN INSURANCE UK LTD v MSF [1999] UKEAT 742_99_2707

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 742_99_2707

Case No Appeal No. EAT/742/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

HIBERNIAN INSURANCE UK LTDAPPELLANT

MSFRESPONDENT

Before

Mr Justice Morison

Date 27 July 1999

[1]) Messrs Thompsons Solicitors Richmond House Rumford Place Liverpool L3 9SW MR JUSTICE MORISON (PRESIDENT): This is an Appeal against the unanimous decision of an Employment Tribunal which concluded, firstly, that the application made by MSF, a Trade Union, against Hibernian Insurance UK Ltd was within time and secondly, that there had not been an amendment to the Originating Application by the supply of a document which purported to be further particulars of the claim. This Appeal concerns only the second of the two Orders made by the Employment Tribunal. The substance of what the Tribunal concluded was this and I cite from paragraph 4 of their Decision:

"We then considered whether there had been an amendment to the Originating Application by the submission of the Further and Better Particulars and if so, whether we should allow that amendment. We considered Box 1 of the Originating Application which states that the complaint was in respect of a failure to consult for the purposes of a transfer. It may be that Box 12 was inelegantly worded. However, Box 1 clearly states what the complaint is and that is failure to consult for the purposes of the transfer. We do not find that the Further and Better Particulars are an amendment to the Originating Application but simply amplify the Originating Application. It is only common sense to understand from that document that the main complaint is failure to consult for the purposes of a transfer. In coming to this decision we have considered Selkent Bus Co Limited -v- Moore [1996] 836 of the Industrial Cases Reports."

[2]The Originating Application was, as the Tribunal said, referring in Box 1 to a failure to consult for the purposes of a transfer. Applicants are invited to give brief details about their complaint and in brackets underneath that instruction in Box 12, these words:

"(Do not send any other documents or evidence to support your case at this stage. You will be given the opportunity to provide more details later.)" and underneath that, the words are: "

NIG Scandia require the share capital of Hibernian Insurance Company Limited on 30 th October 1998. Hibernian continued to exist as a separate legal entity. MSF was recognised by Hibernian Insurance Company Ltd for the purposes of collective bargaining and representation. On or about 1 st December 1998 the employees of Hibernian Insurance Company Limited (the Transferor) were transferred to NIG Scandia (the Transferee) . Prior to the transfer NIG Scandia stated that they would not recognise MSF. There was no meaningful consultation about the matter."

[3]The company have appealed this interlocutory decision of the Employment Tribunal and Mr Swift, with his usual ability, has sought to persuade us that the Employment Tribunal has erred in law. He says that there is only one reading of the words "There was no meaningful consultation about the matter" namely, about the question of de-recognition. This was not an allegation that there had been no meaningful consultation about the events leading to the transfer and the redundancies which followed.

[4]He maintains that position despite the pleading which was filed on behalf of the company which, to some extent, dealt with the question of consultation. The amended document, if it be an amendment, or the Further and Better Particulars, if that is what they are, set out in very summary form the nature of the Union's case about the ineffectiveness of the consultation process. They say that it was not essentially one of consultation but rather of information and being told what was going to happen; and they make a reference to a number of events and say that those and the contents of a particular letter confirm the company's approach to the question of consultation. They specifically rely on the fact that they sent a letter, or rather letters, dated 13 th November and 24 th November seeking clarification about matters relating to redundancies and complain that no response was received prior to the transfer. They say that following the transfer they will contend that decisions relating to the redundancies have been made without consultation, asserting that the request in the letter of 13th November 1998 was reasonable. They are going to invite the Tribunal to conclude that the consultation process was never intended by the company to influence decisions; and that the company felt that it, alone, should take decisions and, in this regard, they say the consultation exercise was an information exercise undertaken in a mechanistic manner.

[5]Mr Swift says this plainly amounts to a new claim. He says the matter is confined to the step of de-recognition and not to the consequences of it and he says that that is a position which every reasonable reader of the pleading would arrive at. He was obviously not supported in that view by the Employment Tribunal and we have looked at the matter with care. It seems to us that his assertion is what can be described as a mere assertion. It is, in my view, incorrect. The Union was manifestly complaining about de-recognition and it was complaining also about the lack of consultation as representatives of those by whom they were recognised for bargaining purposes.

[6]The "amendment" was made 6 weeks after the IT.1 and the IT.3 had been filed. Mr Swift points out that it enlarges the scope of the case at least so far as the understanding of the company is concerned and will, no doubt, demand a rather longer hearing than they perhaps had initially anticipated. He says that no explanation has been put forward for why they wanted to make the amendment. Frankly, the answer to that submission is that it was the Union's belief, which we share, that they were not seeking to make an amendment at all but rather, were giving the details which Box 12 foreshadowed they would have a chance of doing in due time. He points out the length of the hearing will also affect the question of costs and it has revealed a claim which could be very expensive for the company were it to be made out, whereas previously, they might not have thought that such a claim was worth so much. He says therefore, that the Tribunal's decision that this is not an amendment was perverse, and that application for leave to amend should have been made. That would require balancing a number of factors, not least the fact that the original claim was presented on the last day available for service and that therefore, if this was a new claim it is out of time.

[7]As we have indicated, it seems to me this Appeal is without any merit. I entirely agree with the approach adopted by the Employment Tribunal. It does not seem to me this constitutes an amendment, but even if it did, in the context of Employment Tribunal proceedings, bearing in mind the time scale within which these Further and Better Particulars were provided, it seems to me obvious that the Employment Tribunal and every Employment Tribunal would have exercised its discretion to permit the amendment. The reason why the application for leave to amend was not made was precisely because it was thought that the pleadings already covered these matters. It seems to me that the object of the exercise is to do justice according to law between the parties. It is not suggested that the Appellant/Respondents will be prejudiced by the lateness of this application for leave to amend were such an application to have been made, or indeed, by the lateness of the delivery of the Further and Better Particulars. Indeed, they were delivered in good time.

[8]It seems to me that this Appeal should be dismissed. We go further and say this was not an Appeal which should have been made in the first place.

[9]Again, despite Mr Swift's eloquence, I am of the view that this was an unnecessary Appeal and I take into account in arriving at that conclusion that he says that this involves an important development of the case, so far as his clients are concerned, because it involves them or may involve them now in a very large expenditure. But I think, with great respect, that the size of the claim should not determine the circumstances in which it is sensible to lodge an Appeal. This Appeal, as I have indicated, was hopeless and was unnecessary and accordingly, an Order for Costs is appropriate. We have had a discussion about the amount of the costs. It seems to me to be quite impractical and expensive and time-consuming to order the costs to be taxed, which is what I have power to do under Section 34(2). I believe I should assess them myself.

[10]The assessment of costs must reflect the fact that the assessment is being made without the benefit of taxation and therefore must, I think, err on the side of caution. On the limited information which I have, which I will not specify, I believe that a figure of £250 would fairly reflect a proper assessment, having regard to not just the amount of costs which MSF may have incurred themselves, but rather, the amount which it would be just and equitable to order to be paid by the losing party. So that the fact that I assess the costs at £250 should not deter MSF's lawyers from charging their clients their usual reasonable fee for doing their work.