WENDY COMFORT v LORD CHANCELLOR'S DEPARTMENT [2003] UKEAT 0666_02_2905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0666_02_2905Case No Appeal No. UKEAT/0666/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WENDY COMFORTAPPELLANTLORD CHANCELLOR'S DEPARTMENTRESPONDENT
Before
His Honour Judge Birtles Mr D A C Lambert Mrs R A VickersDate 29 May 2003
[1]APPEARANCES For the Appellant MR I GATT QC (of Counsel) Instructed by: Free Representation Unit Peer House 4th Floor 8 - 14 Verulam Street London WC1X 8LZ For the Respondent MR P COPPEL (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS HIS HONOUR JUDGE BIRTLES This is an application by the Appellant to introduce what is called a "Re-amended Notice of Appeal". The history is that Ms Comfort appeals from a decision of an Employment Tribunal sitting in Cardiff in February and April 2002, where the Employment Tribunal unanimously dismissed her claims for disability discrimination, unlawful constructive dismissal and breach of contract. It is not necessary at this point to go into the history of the case or to the factual background. Suffice it to say that Ms Comfort appealed to this Tribunal by a Notice of Appeal and that Notice of Appeal listed three grounds of appeal.[2]The matter came before a different division of the Employment Tribunal at a Preliminary Hearing on 20 November 2002; the Tribunal was presided over by His Honour Judge Altman. The Employment Tribunal dismissed the appeal in respect of grounds one and two, and permitted the third ground in the Notice of Appeal to go forward to a full hearing. That is dealt with in paragraphs 1 - 7 of the Employment Appeal Tribunal judgment.[3]It is apparent that paragraph in some way a further issue was raised before that Appeal Tribunal and it is dealt with in the judgment of His Honour

Judge Altman in the following way:

"8 Mr Whale has helpfully appeared on behalf of the ELAAS scheme and has intimated that he would wish to seek to amend the Notice of Appeal. We order that any proposed amendment in line with that put forward to us must be filed and served on the Respondents within fourteen days of the Order, that the Respondents have fourteen days to reply thereto and the matter be put before me or another Judge for leave thereafter. Subject to that this matter will be listed for half a day in Category C and the automatic directions will apply."
[4]It is apparent from that paragraph that what I will call the fourth ground of appeal must have been raised before that Appeal Tribunal and the only logical construction of His Honour Judge Altman's words with the Amended Notice of Appeal put before us must mean that that was put forward to His Honour Judge Altman and his colleagues either by Mr Panting, who appeared on behalf of Ms Comfort, or Mr Whale, of Counsel, who appeared for her under the ELAAS scheme. We deduce from the structure of paragraph 8 that it was a ground of appeal put forward by Mr Whale. We have heard some comments or instructions put forward as to what happened on behalf of the Appellant at the Preliminary Hearing, but we are not in a position to make any findings of fact. As we are not in a position to make any findings of fact, we have to proceed on the words of the Appeal Tribunal's judgment.[5]The Amended Notice of Appeal, which is in typed form, was drafted and clearly signed by Mr Whale and it is dated 25 November 2002 and was received here on the following day. That Amended Notice of Appeal sets out the further ground of appeal and I read from the second part of paragraph 2 of that Amended Notice of Appeal. It refers to the Preliminary Hearing and goes on to say this: "…. and it also granted the Appellant permission to amend her Notice of Appeal to include a further ground for appeal relating to the ET's decision on redundancy. That further ground for appeal is set out below." and it is then set out.[6]Pausing there we find it impossible to accept Mr Gatt's submission that somehow between the hearing at which Mr Whale appeared, and five days later, that he misunderstood or misconceived the ground of appeal on redundancy which he had put forward to the Preliminary Hearing. There is no evidence to support that submission, not least from Mr Whale himself.[7]The matter proceeded then in this way: that Amended Notice of Appeal, having been served and filed, the Respondents filed an answer which is signed by the Treasury Solicitor on 10 February 2003 and received here on the same date. The Respondents' Answer in paragraph 3 sets out the reply to the Amended Notice of Appeal drafted by Mr Whale. Despite His Honour Judge Altman's Order that after the Respondents' Answer had been received, the question of the leave to amend the Notice of Appeal should be put before him or another Judge of the Employment Appeal Tribunal, that was not done.[8]It may well be that that was a failure here, but in any event the Appellant's representatives did not seek to confirm with the EAT that the Amended Notice of Appeal had been put before a Judge and that leave had been granted. There matters remained until 9 May this year. On that day, the Free Representation Unit, who were now representing Ms Comfort, wrote to the Employment Appeal Tribunal and to the Respondents indicating that they wished to re-amend the Notice of Appeal to plead a different point on the redundancy issue. The Respondents objected and the matter comes before us for decision today.[9]Having carefully considered the matter, we are of the view that the re-amendment, although technically in fact an amendment, should not be granted. This Tribunal has procedures which, in our view, must be followed. The issue of redundancy was raised at the Preliminary Hearing, was listened to by His Honour Judge Altman and his colleagues, and on the basis of submissions by Mr Whale, granted provisional leave for an amendment along the lines of the submission made to them.[10]As we say, we cannot find that it is possible that Counsel, an experienced employment Counsel, could possibly have misunderstood his own submission to His Honour Judge Altman and his colleagues, or in the alternative, within the next five days got it completely wrong. It simply, in our view, beggars belief. For that reason we are not prepared to permit the re-amendment. I should also say in postscript that we have not heard any sworn evidence as to what happened before His Honour Judge Altman and we make this decision based solely upon the papers before us. For that reason the application to amend the Notice of Appeal is refused.