REAR ADMIRAL T J ENGLAND v HAMPSHIRE COUNTY COUNCIL [2000] UKEAT 1278_00_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1278_00_0711Case No Appeal No. EAT/1278/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
REAR ADMIRAL T J ENGLANDAPPELLANTHAMPSHIRE COUNTY COUNCILRESPONDENT
Before
His Honour Judge J R ReidDate 7 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT HIS HONOUR JUDGE J R REID QC We have before us today the latest instalment in the long running saga of Rear Admiral England's claim against the Hampshire County Council. The case has had a chequered history and the last substantive hearing before the Employment Appeal Tribunal resulted in a judgment delivered by His Honour Judge Wilson in which he directed, and I quote as follows: "19 We allow the appeal and remit the matter for a full hearing by an Employment Tribunal of all the evidence on both sides. We shall refer the matter to the President of the Employment Tribunals with a view to his considering the transfer of the case to a different region, preferably one where it may receive priority. In referring it to the President, we direct that a second copy of Mr Justice Morison's judgement on the first appeal should be sent to him, that a copy of Mr Justice Charles' judgment should be sent and finally, of course, this judgement".[2]The judgment of Mr Justice Morison was the judgment from the first time this matter came before the Employment Appeal Tribunal; Mr Justice Charles' judgment was simply the judgment on the ex-parte preliminary hearing of the appeal with which Judge Wilson was dealing.[3]Unhappily, when the Order came to be drawn, instead of reflecting the sentence:
"We shall refer the matter to the President of the Employment Tribunals with a view to his considering the transfer of the case to a different region, preferably one where it may receive priority"
The Order was in terms which indicated that it should be transferred to a different Tribunal.[4]The effect of that is that Rear Admiral England was left with the impression that the case would indeed be transferred, and was therefore, not surprisingly, a little discomposed when he discovered that the matter was in fact going back to the Southampton region for its further trial. When he raised the matter, the response from the Chairman was contained in this passage:
"As mentioned in my letter dated 30 June 2000, the Regional Chairman consulted with the President of the Employment Tribunals and the President spoke to the Judge from the Employment Appeal Tribunal, H H Judge Wilson. The President took the view, after consultation with H H Judge Wilson, that the only reason why the case was to be transferred out of the region was to ensure an expedited hearing and since this region can provide an expedited hearing, the President saw no reason for it to be transferred outside the region."
[5]From that ruling, the Rear Admiral appealed on the basis that, in line with the terms of the Order as drawn, the matter should have been transferred to a different region, and he expressed the view that he no longer has any confidence in the Southampton region; there had now been two successful visits by him to the Employment Appeal Tribunal, following hearings in the Southampton region and his view was that the terms of the Order reflected what was intended by the Employment Tribunal rather than the wording of the judgment.[6]In our judgment, that is not the appropriate way to approach the matter. The revised judgment which we have seen is not accurately reflected in the Order which was then drawn up, and in our judgment, pursuant to the slip rule, the Order ought to be amended so as to follow the wording used by Judge Wilson in the revised transcript of the judgment. That, however, does not answer the question whether or not the hearing should, as Judge Prophet, the President of the Employment Tribunals directed, go back to Southampton, or whether it should go elsewhere.[7]On this appeal the Hampshire County Council have not appeared and have indicated that they have no objection to the matter going to a different region. The Rear Admiral clearly has strong views about the matter, and he has expressed those views, indicating that he no longer has confidence and that, putting it perhaps less strongly than he would, that it might appear unfortunate if the matter went back, yet again, to a region where has already crossed swords with the Regional Chairman.[8]We take the view that those fears are entirely unfounded, but we do equally take the view that it is important not only that justice is done, but that it should be seen to be done, and in the absence of any objection from that County Council, we propose to direct that the matter be referred for re-hearing to some Tribunal other than ones in the Southampton region.[9]We are not thereby making any criticism of the determination of Judge Prophet as to it being heard at Southampton, he has after all, to look to the proper disposal of business in all the Tribunals and he has to look to the burden that each of them is carrying: waiting times and the like. But he was clearly primarily influenced by the time factor and by the fact that a fresh hearing could take place promptly at Southampton.[10]Since we are informed by the Rear Admiral that he is not overly concerned about the promptness with which his claim is finally dealt with, it seems to us that we can properly give less weight to that factor than Judge Prophet gave to it, and therefore, in all the circumstances, we take the view that as a matter of our discretion, it is appropriate for the better appearance of justice that the matter should be re-tried in some other region, and we will direct that the President of the Employment Tribunals re-allocates this for re-hearing in some Tribunal other than in the Southampton region. We do not, of course, give any indication as to what other region that should be, and both the Rear Admiral and the County Council will have to take pot luck, it is not down to them to complain if they end up in Durham, or somewhere thoroughly inconvenient.