MR D R GOULD v (1) THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE (2) THE GOVERNORS OF LAMBROOK HAILEYBURY SCHOOL [2001] UKEAT 1136_00_0606

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1136_00_0606

Case No Appeal No. EAT/1136/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D R GOULDAPPELLANT

(1) THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE (2) THE GOVERNORS OF LAMBROOK HAILEYBURY SCHOOLRESPONDENT

Before

Mr Justice Lindsay

Date 6 June 2001

[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) This is the fourth judgment we have given this afternoon in relation to an appeal headed

EAT/1136/00

; again it is in the matter Gould against The Governors of Haileybury & Imperial Service College and The Governors of Lambrook Haileybury School

[2]On 10 July 2000 a full three-person Employment Tribunal had before it an application by Mr Gould for a review. It was an application for a review of the decision sent to the parties on 4 May 2000. To make sense, or, I would hope, fuller sense, one needs to refer to the judgment we gave last year in February and the other judgments we have given this afternoon. But on 10 July that full Tribunal had before it an application for a review which, by then, had been limited to two subjects only, namely, firstly, the question of a reference given to the educational agents, Gabbitas, by Mr Hare, formerly Headmaster of Haileybury and relating to Mr Gould and, secondly, new evidence which had come to light, as Mr Gould claimed, from a Mrs Sarah Donovan, the Head Teacher of Devonshire House Prep School in Hampstead.

[3]On 31 July the Tribunal gave its decision on the question of review and it sent it to the parties and it said:

"The Tribunal refuses the applications for review of its decision sent to the parties on 4 May 2000."

[4]On 9 September 2000, Mr Gould dated his Notice of Appeal and it raises two subjects. One of them concerns the alleged revelation of a 'without prejudice' offer. There is no mention of the revelation in the Employment Tribunal's Extended Reasons, nor is it explained how the revelation could have affected the Employment Tribunal in relation to this particular decision and we cannot see that the Notice of Appeal describes or discloses any arguable point of law on that subject. But the other subject is as to new evidence from Mrs Donovan.

(d) :

"that new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing."

[5]Mrs Donovan was Mr Gould's witness at the substantive hearing, albeit one who attended under a witness summons. He claims that Mrs Donovan has, since that main hearing, told him that she had received a telephone call from a Governor of the respondent who told her, firstly, not to recruit the applicant and, secondly, not to say that he had told her this. According to the applicant, Mrs Donovan did not reveal this information any earlier because the Governor had asked her not to reveal the information to him. Mr Gould says that Mrs Donovan revealed this to him after the hearing but of her own volition, though it transpired, during the course of the application for a review, that Mr Gould by then thought that Mrs Donovan would not make a written statement to the effect which Mr Gould had hoped she would. The Tribunal says this:

"Prior to this hearing the Tribunal office had at the instigation of the Chairman suggested to the applicant that he might wish to obtain a copy of the witness statement for Mrs Donovan, so that the Tribunal might measure the likely value of such evidence. The applicant was unable to do this because, in his opinion, Mrs Donovan was a hostile witness and was most unlikely to assist him by providing such a statement. He had taken Employment Tribunal proceedings in London Central against Devonshire House Prep School and maintains that under oath Mrs Donovan had spoken the words as alleged."

So the likelihood was that, if she were to be recalled, Mrs Donovan would not have said what Mr Gould had said that she had earlier said to him. Moreover, the Tribunal continued in their paragraph of 8 a):

"Mrs Donovan has already given evidence before this Tribunal and could have been asked a variety of question by the applicant at that time including whether she had any communication with anyone at the school other than Mr Hare. The applicant said that Mrs Donovan had replied untruthfully to a question which he had raised about this but the only note which the Chairman has of any evidence which may be relevant is that since speaking with Mr Hare, Mrs Donovan, (according to her oral evidence) had not had any contact with the respondent either herself or through her solicitors. The respondents' solicitors had no reference to any such question with their notes. There was certainly no close questioning of Mrs Donovan by the applicant. Mrs Donovan came along as a witness at the instigation of the applicant in compliance with a witness summons issued by the Tribunal. It was open to the applicant to ask her appropriate questions."

The Tribunal said:

"We believe that this kind of evidence could have been reasonably known of or foreseen at the time of the hearing and could have been elicited from questions of the witness. There must be a finality in litigation and a review is not intended to give parties an opportunity of a re-hearing at which, for example, evidence can be given with a different emphasis."

In his Notice of Appeal, Mr Gould said:

"In the alternative, without prejudice to the above, it is submitted that it is unreasonable to expect a litigant-in-person to question a witness as thoroughly as a lawyer."

[6]However, a litigant-in-person, and, a fortiori, one might think, one who is a barrister, as is Mr Gould, can be expected fully to discuss matters with his own witness to find what the witness might say that would help him or indeed what the witness might say that would hinder him. The fact that Mrs Donovan gave this information later, even if she did so of her own volition, suggests that if only she had been asked the right questions earlier she would or might have given what Mr Gould says would have been the truthful answer, an answer that would have assisted him. Mr Gould claims that the Employment Tribunal is wrong to reflect that Mrs Donovan, if recalled, might have to be treated as a hostile witness and that they, the Employment Tribunal, did not know what her evidence would be. But neither of those consideration is irrelevant. It is absolutely essential to an application for a recall of a witness, after judgment given, made on the basis of fresh material evidence having become available, that the applicant seeking that late evidence to be admitted can show what it is likely that the witness will say and whether it is likely that whatever the witness will say will be at least possibly credible. But Mr Gould felt unable to ask for a witness statement from Mrs Donovan and he himself felt that he would have to apply to treat her as hostile. The Employment Tribunal was thus looking, in relation to the review application, to a situation which had been foreseen, in effect, by Mr Gould, in which he would put to Mrs Donovan orally what he claimed she had earlier said to him but in which she would then answer simply that she had never said any such thing.

[7]To re-open a case to admit evidence of that kind, as it seems to us - and, plainly, as it seemed to the Employment Tribunal - would be completely pointless and there is, as we see it, no arguable error of law in this particular appeal and we dismiss the appeal even at the preliminary stage.