MR A G SOTERIOU v 1) ULTRACHEM LTD 2) SOLVO LTD 3) ULTRACOLOUR LTD [2002] UKEAT 250_01_2105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 250_01_2105Case No Appeal No. EAT/250/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A G SOTERIOUAPPELLANT1) ULTRACHEM LTD 2) SOLVO LTD 3) ULTRACOLOUR LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr D A C Lambert Mr R N StrakerDate 21 May 2002
[1]APPEARANCES For the Appellant MR SOTERIOU (the Appellant in Person) For the Respondents MISS EADY (of Counsel) Messrs Lawrence Graham Solicitors 190 The Strand London WC2R 1JN JUDGE PETER CLARK: Mr Soteriou refers to paragraph 6 of the judgment of Lord Justice Sedley on the permission application heard on 12 December 2001, in which the Appellant sought the permission of the Court of Appeal to appeal against the EAT ruling at the preliminary hearing in this case, held on 1 August 2001, dismissing all grounds of appeal save one, that is the illegality point identified at paragraph 8 of the President's judgment at that preliminary hearing.[2]At paragraph 6 of his judgment, Lord Justice Sedley observed that the Employment Appeal Tribunal has power to receive further evidence on appeal if it is appropriate to do so. That, of course, is a correct statement of the practice. The EAT will, in exceptional circumstances, admit new evidence which was not before the Employment Tribunal. Before doing so, the party wishing to adduce the new evidence on appeal must satisfy the three-fold test in Ladd v. Marshall (1954) 1WLR 1489 1491, formulated by Lord Justice Denning as he then was, in these terms:
"To justify the reception of fresh evidence for a new trial, three conditions must be fulfilled. First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, secondly the evidence must be such that if given, it would probably have an important influence on the result of the case. That need not be decisive. Thirdly, the evidence must be such that is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible."
That test was adopted in this jurisdiction by Mr Justice Popplewell, then President, in Wileman v. Minilec Engineering Ltd (1988) ICR 318.[3]The new evidence which Mr Soteriou seeks to adduce is that exhibited to his witness statement in these appeal proceedings dated 14 February 2001 and appearing at pages 85 - 177 of our bundle. That documentary material is generically described by Mr Soteriou as showing that Mr Brinton, the prime mover behind the Respondent companies, was guilty of other serious illegalities and unlawful activities.[4]It is said that the evidence is relevant to the issue of illegality below because it shows that the Appellant was powerless to influence Mr Brinton's decision that the Appellant should not be treated as an employee or in the Appellant's words, "go on the payroll."[5]We turn then to the Ladd v. Marshall test. First, could the evidence have been obtained with reasonable diligence for use of the trial before the Employment Tribunal? The short answer is that it could indeed. The Appellant had the evidence but chose not to seek to put it before the Employment Tribunal. Asked why, he told us that he was frightened to use it; he was scared of Mr Brinton. We cannot accept that explanation. The documentary material supports certain allegations about the fraudulent behaviour of Mr Brinton, contained in paragraph 71 of the Appellant's witness statement, served on the Respondents and placed before the Employment Tribunal. At paragraph 2 of their extended reasons, the Tribunal ruled that evidence inadmissible. If the Appellant was prepared to make the allegations in his witness statement, there was no reason for him not to seek to rely on the supporting documentation as well.[6]Secondly, would the evidence, if given, have had an important influence on the result of the case? The answer again is no; the Tribunal would have ruled the documentary evidence inadmissible, in the same way as the oral evidence set out at paragraph 71 of the Appellant's witness statement. It would in these circumstances have had no influence on the outcome. That gives a rise to a further consideration, is there presently before us an appeal against the Tribunal's ruling at paragraph 2 of their reasons, that paragraph 71 of the Appellant's witness statement was inadmissible? In our view there is not. That ground, although appearing in paragraph 11 of the Appellant's skeleton argument used at the preliminary hearing, to which reference is made in the President's judgment, was not permitted to proceed. Lord Justice Sedley refused the Appellant permission to appeal to the court of appeal against that ruling.[7]In these circumstances, even if we were to assume that the evidence is apparently credible, and it is unnecessary to make any finding on that question, it seems to us that the Appellant has failed to pass the first two limbs of the Ladd v. Marshall test. Consequently we shall dismiss this application.