MR A A LEWIN v NORTH EAST LONDON PROBATION SERVICE [2002] UKEAT 1123_01_0103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1123_01_0103

Case No Appeal No. EAT/1123/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A A LEWINAPPELLANT

NORTH EAST LONDON PROBATION SERVICERESPONDENT

Before

His Honour Judge A Wilkie

Date 1 March 2002

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR EDWARD FITZGERALD (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH JUDGE A WILKIE QC This is an appeal by Mr Lewin against the Decision of the Employment Tribunal at Stratford, on 1 August of last year which dismissed his application to strike out the Respondents' Notice of Appearance, Mr Lewin having argued that it should be struck out on the grounds of the Respondents' scandalous behaviour in the course of conducting the proceedings which they were defending against his claim for various remedies. The full merits hearing of this case is presently listed for early April this year.

[2]Mr Lewin's application to strike out was essentially on the basis that an application by the Respondents, dated 27 March 2001, to adjourn the substantive hearing dates which were then fixed for 4 April 2001 was made in bad faith. Essentially, the application to stand out that date was on the basis that a crucial witness for the Respondents, Mr Browne, was apparently, unable to attend the Tribunal hearing and give evidence on account of his ill health.

[3]Mr Lewin, in conducting his own appeal, has had the advantage of a Notice of Appeal settled by solicitors then acting for him, and the Skeleton Argument, also settled by those solicitors. They take a number of points, each one of which it seems to us, is patently unarguable as, in effect, being invitations to re-open questions of fact or containing general assertions of perversity, in circumstances where the necessary foundation for such assertions is far from being made out.

[4]In the course of his oral presentation of his case, Mr Lewin equally advanced his appeal on a number of fronts: essentially, perversity and bias. Once again, on these general points, even though supported, he says, by specific matters in the documentation, we are satisfied that none of them raise any points of law, nor do they come anywhere near establishing that the Tribunal Decision was perverse. There was, however, one point which Mr Lewin made in the course of oral submissions which has given us considerable concern, and we will turn to that in due course.

[5]The application for an adjournment had been made on 27 March by a letter from Russell Jones & Walker, who are acting for the Respondents. The essence of the application is contained in the two short paragraphs in the middle of that letter, in which they say:

"Unfortunately, one of the key witnesses, Mr Jomo Browne, was involved in a road traffic accident in Morocco at the end of February, in which 2 people were killed. The Tribunal was not informed at this time, because Mr Browne assured our client's representative, that although on sick leave, he would still be able to give evidence at the Hearing. Since this time, Mr Browne has been diagnosed as suffering from post-traumatic stress syndrome and his condition has deteriorated. Our client has attempted without success to contact Mr Browne, and as he has a sick note covering the duration of the Hearing we must assume that he is not fit to attend. On this basis, we see no other option available other than to apply for an adjournment of the Hearing. It is unlikely that Mr Browne's evidence can be achieved, and Mr Lewin is opposed to an adjournment."

[6]Annexed to this letter which was sent at 5.49 pm on 27 March, were two sick notes, dated respectively 7 March and 21 March. The first one signed Mr Browne off work for three weeks on the basis of neck pain, back pain, post road traffic accident, post traumatic stress, from, it must be 27 February. The second one certified him unfit for work for one month on the basis of post traumatic stress and RTA injuries. It must be noted at this stage that the description in the medical certificates is identical and does not, in itself, describe a condition which is deteriorating, though it does describe a condition which is continuing. The Tribunal Chairman, on 28 March, decided to adjourn the hearing date in accordance with the application which had been made.

[7]On 3 April, Mr Lewin wrote a letter to the Tribunal in which he invited the Tribunal to, among other things, consider striking out the defence of the Respondents. The principal reason for doing so is set out in this letter, in the following extracts:

"I am surprised to have learnt from a source within North East London Probation Service that Mr Browne took a flight to Jamaica on or about Wednesday 28 March 2001. There is no doubt that he knew about this case, the length of time it has been outstanding and the depth of stress and anxiety it has caused me as a lay person trying to prepare and present this case myself."

He then goes on to say:

"Flights to and from Jamaica take approximately eight hours each way and I contend that if Mr Browne is able to undertake such journeys then he should have been able to give evidence."

And then a little later on, he says:

"If Mr Browne is in Jamaica then it is clear that he has misled his colleagues, senior managers, advocates and the Tribunal regarding the reasons for a further postponement of this case."

[8]It is therefore clear that at this time, Mr Lewin had information from within the Respondents that Mr Browne was indeed in Jamaica, for what purpose apparently unknown, and that at that stage Mr Lewin was asserting that it was Mr Browne who had been misleading, amongst others, his employers and their advocates, rather than it was the employer and the advocates who had been misleading the Tribunal. That letter was sent by Mr Lewin to the Tribunal on 3 April. It seems to have arrived the next day because, on 4 April, the Tribunal sent to Russell Jones & Walker a letter which enclosed Mr Lewin's letter of 3 April. The letter of 4 April says as follows:

"A Chairman of the Tribunals to whom I have referred this case, Mr I F Pritchard-Witts, has directed that the Respondents provide a full explanation on or before 20 April 2001 for Mr Browne's conduct if the Applicant's contention is correct that i) he has left the country for Jamaica ii) he did so on or about 28 March 2001 The Chairman wishes to stress that, if the Applicant is of the view that the explanation is unsatisfactory, he may request, or the Tribunal may hold an Interlocutory Hearing to determine whether the Respondents should have their Notice of Appearance struck out on the basis of scandalous conduct …."

[9]The next relevant event is the sending by Russell Jones & Walker on 9 April of a letter in reply to that of the Employment Tribunal. In that letter they say the following things:

"At the time of our letter to the Tribunal, dated…" and then it says "4 th April" but that must be a mistaken reference to 27 March "…requesting a postponement of the Hearing commencing on 4 April, the Respondent was not aware that Mr Jomo Browne had left the country for Jamaica, or, that he had any plans to leave the country. The Respondent only became aware of the possibility of Mr Browne being in Jamaica upon receipt of the Tribunal's letter, dated 4 th April, with attached letter from Mr Lewin's dated 3 rd April. As indicated in our letter dated 27 March 2001, Mr Browne was involved in a road traffic accident in Morocco at the end of February, in which two people were killed. We have since learned that one of the people killed in the accident was the child of Mr Browne's partner. The Tribunal was not informed of the possibility of a postponement at that time, as Mr Browne assured the Respondent that he was fit to attend the Hearing."

And then a little later on:

"A week before the hearing, on or before 26 th March, attempts were made by the Respondent to contact Mr Browne. Due to unsuccessful attempts, it was considered that Mr Browne's condition had deteriorated. Immediate efforts were made to substantiate this by obtaining sick notes from Mr Browne's GP. These confirmed that Mr Browne was on sick leave for the duration of the hearing, as a result of suffering post traumatic stress syndrome."

And a little later on:

"The Respondent fully accepts that just because Mr Browne has a sick note covering the dates of the hearing, this does not automatically mean that he was unfit to give evidence at the hearing. However, the Respondent does not accept Mr Lewin's assertion that if Mr Brown was fit to fly to Jamaica, he was fit to give evidence. Although we have no proof at this stage, we can only assume that Mr Browne, who is Jamaican, has gone to Jamaica to recuperate. This is understandable given the tragic nature of the accident"

[10]This letter which is in response to the request of the Tribunal for a full explanation says clearly that the first the Respondents knew of the possibility that Mr Browne was in Jamaica, was upon receipt of Mr Lewin's letter, via the Employment Tribunal. It, however, does evidence that the solicitors had information at some point after 27 March that one of the people killed in the accident was the child of Mr Browne's partner, though the letter does not say when the Respondents might have had that information. On 23 April, the Tribunal wrote both to Mr Lewin and to Russell Jones & Walker a letter to the effect that having received the letter of 9 April, the Chairman did not, at that stage, strike out the Respondents' Notice of Appearance, but reserved the position until the Tribunal was in a position to receive evidence about the matter. There then followed further exchanges of correspondence, in advance of the hearing on 1 August. One of those pieces of correspondence was a letter from Russell Jones & Walker dated 10 May in which, amongst other things, they state that:

"We have been informed that the purpose of Jomo Browne's visit to Jamaica, was to attend the funeral of one of the individuals who died in the car accident in Morocco. Our information is that Jomo Browne went to Jamaica on 25 th March. It has been confirmed that Jomo Browne is now fit enough to give evidence at the Hearing."

[11]The hearing took place on 1 August and resulted in a Decision promulgated on 20 August. Neither Mr Browne nor Mr Robinson, of the Respondents, gave evidence. The evidence on behalf of the Respondents was given by Ms Laughton, who was the trainee solicitor within Russell Jones & Walker, dealing with the matter on behalf of the Respondents. She was cross-examined by Mr Lewin, amongst other things, on the question whether she thought it prudent that the Respondents should be giving evidence at the hearing of 1 August, to which her response, as noted by the Chairman in his Notes of Evidence is:

"I did not think need bother him"

[12]In the course of her evidence, as noted by the Chairman, and this was her evidence-in-chief, the following notes appear. "The Respondent was aware that on 13 March Mr Lewin contacted Mr Robinson to ask if Mr Browne would attend. Mr Robinson was not aware at that time of any reason why not - though he was on sick leave Browne assured Robinson he would be available. On 26 March we actually exchanged statements. On 27 March Robinson phoned me and told me that he had been trying, without any success at all, to contact Mr Browne and that, on the basis that he had managed to obtain sickness notes, he could only assume that Browne's condition had deteriorated. He said he was aware Browne had been in a road traffic accident in February in which two people had been killed. On that basis we discussed the matter at conference with Counsel. Browne was essential for the case. As we could not contact him we could only assume he was not fit to attend. That was the only information available at the time. The postponement was granted by letter dated 28 March. On 4 April we received a letter from the Tribunal enclosing the letter of 3 April from the Applicant to the Tribunal. We thus learnt that Browne had gone to Jamaica. Myself and my client knew nothing before that date about his having gone to Jamaica or that he was planning to go to Jamaica. Between 28 March 2001 and 4 April 2001 I was informed by Mr Robinson that one of the people who had been killed in the road traffic accident in Morocco was the child of Browne's partner and he had gone to Jamaica to attend a funeral - it was not clear whose funeral." She then says that: "Our letter of 10 May says he had gone to a funeral. I was told this in a telephone call from Robinson. I would stress that the Respondent, with the evidence that they had available, tried to be helpful in the circumstances. We did not know where Browne had gone. At the time we asked for a postponement all the information we had was: i) Browne was on sick leave. I admit this was for some time previously but we, me and my client, had also been told he would be available. ii) My client and I were aware that he been in a road traffic accident in Morocco in which two people were killed. iii) We knew my client could not contact him. iv) In the circumstances the client did the best they could - was to obtain sick notes that he was not fit to attend work. Probably already had them. v) From all of these points we wrote in the letter of 27 March asking for the adjournment that "we must assume that he is not fit to attend".

[13]The Tribunal in what is a careful Decision set out the evidence and the facts which they found. In paragraph 12 of their Decision, they say:

"Miss Laughton has given evidence today that she did not know until the Tribunal conveyed the information which they received from the Applicant that Mr Browne had gone to Jamaica and she has told us that Mr Robinson has told her that he did not know. Miss Laughton has conceded that the letter she wrote could have been better expressed and that the phrase "his condition has deteriorated" could be misleading and should, if more felicitously expressed, have said "and we assume his condition has deteriorated"

. She points out in her own defence that the very next line does state "we must assume that he is not fit to attend". She has given evidence that at the time she made the application for a postponement all the information that she and client had was: (i) That Mr Browne was on sick leave ……. (ii) She and her client were aware that Mr Browne had been in a road traffic accident in which two people were killed. (iii) Mr Robinson could not contact Mr Browne about a week before the Tribunal when he wanted to tell him or remind him that he should attend. (iv) The client had sick notes which I have referred to above."

[14]The issue of credibility and hence, the question of scandalous behaviour, was focused on the question of the state of the Respondents and the Respondents' solicitors' knowledge at the time that they wrote the letter of 27 March. The Tribunal summarised this issue in paragraph 11, where they said:

"If this Tribunal felt that those in positions of authority at the North East London Probation Service such as Mr Robinson, knew at the time they made their application that Mr Browne had gone to Jamaica then this Tribunal would take a very serious view indeed of the letter of 27 March."

In paragraph 12 of the Decision, the Tribunal addressing this particular issue, made the following finding:

"(Ms Laughton) has given evidence that there was no intention to mislead or deceive the Tribunal on her part and we accept that evidence. She has also given evidence that she has been told by Mr Robinson that he did not know that Mr Browne had gone to Jamaica at the time the application was made and we accept that evidence also."

[15]In paragraph 13 of the Decision, the Tribunal reminded themselves that:

" striking-out is a draconian measure which only occurs in very serious circumstances indeed."

They concluded that they did not feel that what they had heard of in this case were such circumstances. They did not consider that there was a deliberate intention to deceive the Tribunal and did not consider that anybody was intentionally telling the Tribunal anything which was untrue. They did indicate that the letter of 27 March could have been more happily expressed but stated that that was a long way from saying that the Tribunal was intentionally deceived or misled. They therefore dismissed the application to strike out.

[16]At the very end of their Decision, in paragraph 15, dealing with other matters, they indicated that Ms Laughton had informed them that she would wish to serve an additional witness statement upon the Applicant, and sought leave to do so, albeit the time for exchange of witness statements had passed. The Tribunal did not consent to that.

[17]Mr Lewin has sought to persuade us that quite apart from, or cumulatively with, their intentions as far as Mr Browne was concerned, the wish to serve an additional witness statement was also a factor which, he says, persuaded the Respondents and/or their representatives, positively to mislead the Tribunal by misrepresenting the state of their knowledge about Mr Browne's whereabouts when they applied for the adjournment on 27 March.

[18]The findings which the Tribunal made on the basis of the evidence, which they accepted had been given and was true, were all consistent and of a piece with the surrounding correspondence. That is to say that if the Respondents first knew that Mr Browne was in Jamaica, only because of what Mr Lewin had informed the Tribunal, then it followed that on 27 March, the Respondents, in applying for their adjournment, were doing so bona fide, not knowing where Mr Browne was, and making the assumptions that it did, albeit in a letter which was not terribly well expressed, and that their subsequent explanation in the 9 April letter, as elaborated on 10 May, were consistent with that case.

[19]The matter which troubles us greatly, and which Mr Lewin has highlighted, is that at the hearing of the case on 1 August, Ms Laughton is noted as having given in evidence something which is starkly at odds with that consistent picture. In the passage which reads:

"Between 28 March 2001 and 4 April 2001, I was informed by Mr Robinson that one of the people who had been killed in the road traffic accident in Morocco, was the child of Browne's partner, and he had gone to Jamaica to attend a funeral"

Even if that evidence were accurately noted and were true, it would not go so far as to be direct evidence that the letter of 27 March was written in bad faith, because at the earliest, it would fix Ms Laughton with knowledge emanating from Mr Robinson of the whereabouts of Mr Browne as being 28 March, that is to say after the letter seeking an application had been written and sent. It would, however, cast the gravest doubts about the veracity of the explanation given in the letter of 9 April, and thereafter elaborated on 10 May, and having called into question the reliability and veracity of those sources of evidence on this crucial issue, it plainly would call into question, afresh, the true basis of the application letter of 27 March.

[20]If the remit of this appellate Tribunal were that we were able to interfere with findings of fact or to consider whether the Tribunal had misunderstood or misapplied the facts, then this particular point might well have persuaded us that this Decision of the Tribunal cannot stand. However, the powers of this Tribunal are severely constrained; we can only uphold an appeal on a point of law, and what amounts to a point of law is equally well established. Mr Lewin has, perfectly properly, referred us to the case of British Telecommunications PLC -v- Sheridan

[1990] IRLR 27

in which the Court of Appeal identified the bases upon which this Tribunal can interfere with the Decision of the Employment Tribunal, and it is to this effect, if the EAT is satisfied that the Tribunal have misdirected themselves as to applicable law, or there is no evidence to support a particular finding of fact (since the absence of evidence to support a finding of fact has always been regarded as a pure question of law); the EAT can also interfere if the Decision is perverse, in the sense explained by Lord Justice May in Neale -v- Hereford and Worcester County Council , in the well known phrase the response of the Tribunal being "My goodness they have got that wrong". However, misunderstanding or misapplication of the facts is not a separate category of ground upon which the EAT can allow an appeal against the Decision of an Employment Tribunal, since that would suggest that the EAT is entitled to allow an appeal if they take a different view of the facts from that of the Employment Tribunal. To the extent that misunderstanding or misapplication of the facts, is identified as a separate basis for allowing an appeal in earlier authorities, then those authorities should not be followed.

[21]We, therefore, have, notwithstanding our great concerns as expressed in this case, to apply the law as has been established for many years, pursuant to the Court of Appeal decision. In our judgment, there is no question of the Tribunal in this case having misdirected themselves as to the applicable law. They have identified the test to be applied before a pleading can be struck out. Nor is this a case where there is no evidence to support the conclusions of fact to which they came. There was ample evidence, and they made their findings of fact based upon it. Nor, having regard to the totality of the evidence, is this a case in which we can say "My goodness they have got that wrong".

[22]What there is, is a body of evidence, both oral and written which points in a certain direction, but there is equally a passage of evidence, fairly short, but to the point, which appears to point in the opposite direction. We cannot go behind the Tribunal Chairman's Notes of Evidence, and therefore we must accept the accuracy of the notes which he has made. It is, however, for the Tribunal to weigh the various bits of evidence that they have heard, and to come to their conclusions as to what evidence they accept and what facts they find, and it is perfectly clear in this case that the evidence that they accepted, and the facts which they found, are clearly set out in the Tribunal's Decision to which we have referred. It is a clear statement of their reasoning; it is a clear statement of the facts that they have found. It is not a Decision which is in any way inadequate, as failing to satisfy the requirements for reasons, as enunciated in the well known decision of Meek -v City of Birmingham Council .

[23]Thus, whilst we agree with Mr Lewin, that he has helpfully highlighted a particular cause for concern, and we have given full expression to the nature and extent of our concern, this is not the type of case where, with our constrained powers of intervention, we feel that it lies within our powers to uphold Mr Lewin's appeal, and therefore we are constrained to dismiss his appeal, and therefore the substantive hearing will take place in April of this year, the Respondents' Notice of Appearance standing as part of the case. Mr Edward Fitzpatrick Sir, in relation to the hearing, in the circumstances, I do apply for costs. Clearly it would have to be on the basis that the costs were unnecessary or vexatious and in relation to the appeal, we do take account of the fact that Mr Lewin is not now legally represented, but he was legally represented when the grounds were filed and submitted, and in relation to those grounds, all of those grounds have effectively been given short shrift by the Tribunal. What has entertained the Tribunal is this point of the discrepancy there arises from the notes that have been produced within the last few days. So the fact of the matter is we regard those as either a slip of the tongue or a slip of the note taking, and in any event, there is nothing in the Notice of Appeal to say that in giving her evidence before the Tribunal, that Sally Laughton gave inconsistent evidence with regard to her state of knowledge. In the circumstances, what I say is that the appeal was effectively a non-starter from the beginning, and that the costs attendant in dealing with the appeal have been unnecessarily incurred, so I do appreciate very much that, as at today's hearing, a point has arisen which clearly has required considerable adjudication and a very helpful detailed judgment, so there is a caveat in the way of my submission, but I think one ought to bear in mind my submission that the fact this was not such a live issue, as regard to the very detailed analysis that we find from Mr Lewin. The analysis was not that at the heart of the hearing there was some sort of inconsistency in the evidence of Ms Laughton, however, any other points he did raise. So that is my application. No, we are not going to award costs. Thank you.