MISS E KHUDADOS v MR J LEGGATE AND OTHERS [2004] UKEAT 0026_04_1002

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0026_04_1002

Case No Appeal No. UKEAT/0026/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS E KHUDADOSAPPELLANT

MR J LEGGATE AND OTHERSRESPONDENT

Before

His Honour Judge D Serota

Date 16 February 2005

[1]APPEARANCES For the Appellant MR JOHN HENDY QC (of Counsel) Instructed by: Messrs Richard Price & Co Solicitors 87 Watkinson Gds Sheffield S20 7LU For the Respondents MS C D'SOUZA (of Counsel) Instructed by: Office of the Solicitor - Department of Health Room 540A - New Court 48 Carey Street London WC2A 2LS SUMMARY Practice and Procedure Khudados précis The EAT declined to permit extensive amendments to a Notice of Appeal by reason of the delay in making application and failure to comply with para 2 (6) of the EAT Practice Direction which requires applications for permission to amend to be made as soon as the need to amend is known. Consideration of the principles upon which the EAT should act when deciding whether or not to allow amendments to Notices of Appeal. HIS HONOUR JUDGE D SEROTA QC Introduction We have two matters before us which arise on the preliminary hearing of an appeal by the Claimant from a decision of the Employment Tribunal at Manchester (K E Robinson esq. Chairman) after a lengthy hearing that took place between 2 June 2003 and 4 July 2003. The Employment Tribunal dismissed the Claimant's claims for discrimination and victimisation under the provisions of both the Sex Discrimination Act 1975 and the Race Relations Act 1976 .

[2]The preliminary hearing took place 26 November 2003. On that occasion we refused to give permission for a substantial amendment to the Notice of Appeal. We notified the parties at the hearing of our decision and said we would give our reasons later. This we now do.

[3]We shall give a separate judgment in relation to the preliminary hearing.

[4]We now set out something of the factual background. We shall do so relatively briefly because the Employment Tribunal gave a detailed and lengthy judgment.

[5]The Claimant is a female Surgeon of Iranian origin. The case concerned her attempts to secure Consultant Neurosurgeon status.

[6]We need to explain who the parties to the proceedings were. The first Respondent is a Consultant Neurosurgeon and the Clinical Director of Neurosurgery at Hope Hospital in Manchester. The second Respondent is also a Consultant Neurosurgeon at Hope Hospital. The third Respondent was also a Consultant Neurosurgeon at Hope Hospital and was one of the Claimant's trainers and educational supervisors. He was the Clinical Director of Neurosurgery at Hope Hospital before Mr Leggate, the first Respondent. The fourth Respondent is a Consultant Neurosurgeon at Hope Hospital and was also one of the Claimant's trainers and educational supervisors. The fifth Respondent is the NHS Trust responsible for the Hope Hospital. The sixth Respondent was at the relevant time the Acting Postgraduate Dean of the North West Deanery responsible for postgraduate training of doctors.

[7]The seventh Respondent is a Consultant Neurosurgeon at Preston NHS Trust and is the Chair of the Neurosurgery Training Subcommittee. He acted as the link between the North West Deanery and Hope Hospital. The eighth Respondent is, as we understand the matter, responsible for the North West Deanery and for the fifth Respondent in so far as it carried out training functions.

[8]In the early 1990s major structural reforms took place in relation to specialist medical training. These reforms were instigated by the Chief Medical Officer, Sir Kenneth Calman and are referred to as "Calman reforms". These reforms introduced the concept of a six year training programme for the training of doctors who wished to become specialists in a particular field. One effect of the Calman reforms was that some autonomy was taken away from the trainers in individual Hospitals who had previously decided who they should train.

[9]A certain number of National Training Numbers (NTNs) were allocated to each region in the country and administered by the appropriate Deanery. Every doctor who was accepted for a Specialist Registrar training programme and who held a substantive appointment in the Specialist Registrar grade required an NTN which was unique to the doctor and held until training was completed, after which it would be released back into circulation, so another doctor could use the number and enter a training programme.

[10]There is no doubt (and the matter is clearly set out in the Decision of the Employment Tribunal) that the Claimant experienced considerable difficulties in obtaining an NTN. Furthermore, when she had obtained an NTN she had difficulty in finding an appropriate training programme as a Specialist Registrar. She made a number of complaints (rejected in detail by the Employment Tribunal) of unfavourable treatment as compared with a Mr Mowle, also an aspiring neurosurgeon who was of mixed British/Chinese descent.

[11]On 16 January 1997 Professor Wells the Regional Postgraduate Dean promised the Claimant the next available date on the Manchester neurosurgical training scheme approved for year four of the scheme. This created some difficulty as the local Speciality Advisory Committee for Training (SAC) questioned the Claimant's eligibility for an NTN and her suitability for further training. In the event, however, no post was available. As a result a number of options were put to the Claimant who rejected them all. In particular she refused a targeted training LAT (Locum Appointment for Training) post which although not an NTN post would have given her a foot in the door. She refused to accept such a post, but Mr Mowle accepted a similar position and did get his foot in the door. The Employment Tribunal had no doubt that there was considerable concern among the Claimant's senior colleagues who were responsible for training as to her clinical abilities and also her interpersonal skills, or more accurately her lack of interpersonal skills.

[12]The Claimant demanded that she should be placed in the neurological training scheme as a year four trainee. The trainers considered she should enter as a year three trainee. A twelve month placement LAT was found for her in Southampton which the Claimant eventually accepted with her view to her "working up" to year four and accepting targeted training. She was given an assurance that her training would be recognised and she was promised a training post in Manchester after her year in Southampton. Her year at Southampton appears to have been spent satisfactorily and she was given a RITA (Recommendation for Targeted Training) C which would enable her to progress through the next training year. Nonetheless the Employment Tribunal drew attention to comments prepared by the Surgeons at Southampton appended to the RITA C."86. There is no need for us to set out the comments in full but in view of what happens in Manchester it was instructive to note the following:- "(a) The applicant had interpersonal problems with two of her senior colleagues at Southampton. (b) Her basic skills in surgery were not impressive. (c) There were major gaps in her knowledge (some areas good and in others 'seriously deficient"). (d) She had strongly-held views and mounts a "passionate defence when she feels she is wronged". (e) She had difficulty accepting constructive criticism and a tendency to argue about adopting different neurosurgical techniques. (f) The single most important point, however, was one of '"latitude".

87. The conclusion was that the applicant was trainable as a neurosurgeon but it ".may take longer than the 3 years from now". The final sentences of the assessment report read as follows:- "She also needs to learn to accept that neurosurgery is constantly changing so that what is considered appropriate today may no longer be so tomorrow. In relation to this she needs to learn to accept that her trainers are encouraging her to practice what they believe to be appropriate at this time, in this institution on the present sorts of patients. Some things can be justified from the literature, others have to be accepted on trust. It needs to be noted that this trust is a two- way process, the trainer has to trust the trainee in terms of technical ability. judgement and reliability while the trainee has to trust the trainer's judgement and experience for successful training."

[13]The Claimant vigorously rejected this RITA C and refused to sign it off and only did so after a degree of wrangling in December.

[14]It also became apparent that the trainers at Manchester were not prepared to accept the Claimant as a year four trainee without their own assessment. She commenced her post in Manchester in December 1999 and was to be assessed in June 2000. Trainees were usually assessed twice yearly. There was little point in assessing the Claimant in January as she had only just started her training and an assessment exercise would not have been worth while.

[15]The Employment Tribunal was satisfied that she would be assessed throughout the course as would all other trainees.

[16]Concerns were expressed by colleagues about her surgical abilities and complaints began to be received from nursing staff, especially from a Sister Weaver as to the Claimant's lack of courtesy. There were also complaints of lack of surgical skill. After hearing the Respondents' evidence and that of the Claimant the Employment Tribunal accepted the evidence of the Respondents' witnesses in this regard and rejected that of the Claimant.

[17]The Employment Tribunal was satisfied that the Claimant's educational trainers were very busy so no meeting was actually arranged until the 12 th May albeit the Claimant had forgotten to attend an earlier meeting on 7 February 2000. The Employment Tribunal were satisfied that other trainees were treated in the same way.

[18]The Employment Tribunal were satisfied, contrary to the Claimant's case.(a) She was not humiliated by the first Respondent Mr Leggate when he was showing her what to do when asked on three occasions she failed to remove disc fragments from a patient.

(b) She was given a fair mix of operations to perform or watch. Other trainees were not give preferential treatment.

(c) The Claimant had not complained to Mr Gurusinghe (7 th Respondent) in early 2000 that she was not being properly trained and was unhappy.

(d) The Claimant had interpersonal difficulties with other staff and knew of this before a meeting took place on 17 May with Mr Leggate.

[19]In early June 2000 the Claimant's trainers issued a form of assessment of the Claimant which led to the Deanery issuing her with a RITA D. The Claimant disagreed vehemently with the RITA D assessment; she challenged every judgment which fell below satisfactory and disagreed with those who identified two areas of grave concern, operative skills and interpersonal skills in relationships. Complaints continued to be made to Mr Leggate, the first Respondent and there is no doubt that relations between her and her colleagues were now strained in the extreme. The Employment Tribunal found that all trainees were assessed in the same way but it was only the Claimant who received a RITA D because the other trainees received a RITA C. The RITA D did not mean that the Claimant could not continue in her training; it meant that the training would target her weaknesses. The Claimant appealed against the RITA D and refused point blank to sign it off. This was found by the Employment Tribunal to be unprecedented. The seventh Respondent Mr Gurusinghe told the Claimant that the issue of the RITA D was a genuine attempt to help her progress and asked her not to consider it as a "battle". However, the Claimant would have none of it and sought assistance from her MP, her previous trainer in Southampton, the Regional Postgraduate Dean and the Speciality Advisory Committee for Training (SAC).

[20]She also refused to meet with her educational supervisors, a matter of serious concern to her trainers because of their concerns that the Department was being disrupted.

[21]The BMA and the fifth Respondent's Human Resources Department were brought in. There was the possibility of transferring the Claimant to another Deanery, but this could not be processed until the claimant signed off the RITA D.

[22]It was at this point in time that Dr Feinmann the sixth Respondent became the Acting Postgraduate Dean. The Employment Tribunal found that he was faced with an almost impossible situation. On the one hand the Claimant was refusing to allow the training programme to go on because she would not sign the RITA D assessment, on the other hand the trainers were complaining that matters were not being moved on and this was causing low morale within the Unit. He invited the Claimant to a meeting on the 27 January 2001 and told her she could bring a representative from the BMA. He had an informal meeting with her on 12 December. There was a conflict of evidence between the Claimant and Dr Feinmann as to what took place on this occasion. The Claimant suggested she was threatened with the loss of her NTN, something denied by Dr Feinmann. The Employment Tribunal accepted Dr Feinmann's evidence.

[23]A meeting was arranged for the 16 January 2001. The Claimant had dismissed her BMA representative and instructed solicitors (the first of at least 8 firms since instructed by the Claimant in relation to her proceedings in the Employment Tribunal and on appeal). She chose not to tell Dr Feinmann either that she had discharged her BMA representative or appointed solicitors. On 15 December the Claimant telephoned to say that the meeting of 16 January was not convenient but Dr Feinmann said it would have to go ahead in her absence if necessary. On 12 January her solicitors Messrs Le Brasseur J. Tickle wrote to inform Dr Feinmann that they were now instructed and asked that the meeting be adjourned. Dr Feinmann declined to adjourn the meeting. Although the Claimant had said that the notice of the meeting was too short for her to attend she did in fact attend but she had no intention of staying at the meeting. She handed over a letter and a sex discrimination questionnaire to Dr Feinmann and then refused to stay. Dr Feinmann and Mr Grimshaw sought to persuade her to stay. The Claimant sought to persuade the Employment Tribunal that Dr Feinmann received the sex discrimination questionnaire and then suspended her. The Employment Tribunal found that Dr Feinmann suspended her not because she had handed him the sex discrimination questionnaire but because she refused to stay at the meeting to discuss issues relating to the breakdown of the relationship between her and her trainers. Despite the Claimant's suspension she continued to attend at the Hospital and had to be told not to.

[24]On 4 April 2001 she presented her Originating Application. This was amended and substantially expanded by Messrs Nabarro Nathanson on 15 January 2002.

[25]On 22 May 2002 the Employment Tribunal gave directions and fixed a hearing for 25 days commencing on 2 June 2003. At this hearing the Claimant was represented by solicitors. She was ordered to serve her witness statement by 23 September 2002 and the Respondents to serve their statements by 17 February 2003. There were also orders for disclosure.

[26]By 31 March 2003 the Claimant had still not served her witness statement and was ordered to do so by 23 April 2003, with any further witness statement she wished to rely upon to be served by 19 May 2003. She then served her witness statement of some 364 paragraphs which was prepared with the assistance of Messrs Nabarro Nathanson. Disclosure was apparently accepted as being complete by 31 March although there were a few additional documents that needed to be prepared and a further order was made in that regard. The Claimant served no further witness statements. The Decision of the Employment Tribunal

[27]The Employment Tribunal set out the facts it found in some considerable detail; we have only given a brief summary which we are conscious does not do justice to the careful and comprehensive manner in which they are set out by the Employment Tribunal. The Employment Tribunal also set out at paragraph 22 some 36 specific issues which it had identified. The Tribunal had identified a number of specific issues after the Claimant had given her evidence and was cross-examined. The list was added to and refined during the course of the hearing.

[28]The Employment Tribunal referred to the legal framework within which the claims were made and directed itself in relation to both the Sex Discrimination Act 1975 and the Race Relations Act 1976 . These directions included directions as to the reverse burden of proof brought into effect by recent amendments to section 63 of the Sex Discrimination Act 1975 and 54A the Race Relations Act 1976 . No complaint is made as to the manner in which the Employment Tribunal directed itself as to the law.

[29]The Employment Tribunal (paragraphs 237) concluded that overall it preferred the evidence of the Respondents' witnesses to that of the Applicant. It considered that the Applicant's accusations against various Respondents had grown over time and her memory was selective. The Respondents' evidence was often corroborated by other witnesses or documentation. The Applicant's evidence was not corroborated especially on crucial issues.

[30]The Employment Tribunal also regarded it as noteworthy that the witnesses who came forward to give evidence on behalf of the Respondents and the individual Respondents themselves, were both male and female and from different ethnic backgrounds.

[31]The Employment Tribunal then went through the 36 separate allegations it had identified and rejected each one of them, giving reasons for doing do. For example it rejected the allegation that the Claimant had been treated less favourably than Mr Mowle. It also found that there were no continuing acts of discrimination so a number of allegations were in any event made or brought out of time. Having considered the separate allegations individually, the Employment Tribunal looked back at the overall picture and concluded that there was no discrimination against the Claimant on the grounds of sex and race, (see paragraphs 416-418)

[32]In a number of cases the Employment Tribunal did call upon the Respondents for an explanation. By way of example we consider an issue iii:

"The treatment of the Applicant by the Deanery and the Consultants at Hope in relation to a place in the training programme and the relevance of three-month option to train in Liverpool, targeted training post in Manchester and the ad persona offer of a contract in Manchester during 1997 to 1998."

Having reviewed the evidence the Employment Tribunal concluded that the Claimant had satisfied the initial burden of proof in raising the possibility there may have been prejudice against her at that time by the Respondents at Hope, the first, the second and third Respondents. The Employment Tribunal asked whether there was an explanation which had nothing to do with the claimant's race or gender which might justify the Consultants' belief that she did not have a future in Neurosurgery in the UK. It went on to find on the facts before it that this was because she had shown herself to be extremely difficult to work with. The Employment Tribunal concluded:

"In our view any man or white doctor who had been as difficult to deal with as the Applicant in terms of interpersonal skills would certainly have been criticised in the same way the Applicant was criticised. The fact that she was so criticised had nothing to do with her sex and or her race. There was explanation for that less favourable treatment."

[33]The Employment Tribunal at paragraph 299 noted that there was ample evidence of the Claimant's interpersonal difficulties and of documented complaints about her. These complaints did not simply come from white male doctors but from females and doctors themselves from an ethnic background. The weight of the evidence was accordingly according to the Tribunal, very much against the Claimant.

[34]The Employment Tribunal concluded that all students from all ethnic backgrounds and of both sexes were treated in the same way, so there was no difference in treatment of the Claimant as compared to any actual or hypothetical comparator and no less favourable treatment.

[35]We now turn to the Notice of Appeal. This is signed by Mr Hendy QC and his junior Mr Sutton and is dated 20 November 2003.

[36]In its unamended form the Notice of Appeal contains complaints that fall under two heads. Firstly in paragraph 6 (1) it is asserted that the Tribunal refused to permit her to adduce relevant evidence in a number of respects. a) She was prevented from cross examining a witness, Professor Jackie Hayden, as to a particular document. b) The Chairman prevented her from supplementing her evidence in chief contained in her witness statement whereas he allowed certain of the Respondents' witnesses to do so. c) She was prevented from calling a Mr Brooke and a Mr Weeks who could have given relevant evidence d) She was prevented from producing further relevant documents. Secondly she asserted that the Tribunal made findings of fact that were unsupported by the evidence or were manifestly contrary to the weight of the evidence in two respects only. a) At paragraph 111 the Tribunal, it is said, found [incorrectly] that she had not been treated differently to other trainees in that no training agreement was set up for her, no assessment, supervision or appraisal dates were set up, and no training goals given to her and in being assessed by her trainers during the early months of her training programme. b) At paragraph 130 the Tribunal found, it is said, [incorrectly] that she was treated no differently to other trainees, in not having formal meetings with her educational supervisors. We shall refer to these allegations again when we later consider whether they cross the appropriate threshold to go to a full hearing.

[37]We need to say something at this stage about the procedural history of the appeal. The Decision of the Employment Tribunal was promulgated on 9 October 2003. On 20 November 2003, as we have noted the Notice of Appeal was presented. The case came for consideration on the "sift" before Rimer J. He ordered that there should be a preliminary hearing and directed the Claimant to serve an affidavit giving details of the conduct and the complaints alleged by her in paragraph 6 (1) of the grounds of appeal within 14 days of the seal date of the order. He made the standard direction that such affidavit should be sent to the Chairman and members of the Employment Tribunal with a view to asking for their comments for the purposes of the preliminary hearing. The Respondents were also permitted if so advised, to lodge with the Employment Tribunal and serve on the Claimant, an affidavit in response. Rimer J made the other standard orders made on a sift, including granting permission to the Respondents to serve concise written submissions in opposition for consideration at the preliminary hearing, to be served within 14 days of the seal date of the order as well as the usual directions in relation to filing of Skeleton Arguments and bundles of documents and authorities by the Claimant.

[38]On 13 January 2004 the Claimant's then solicitors Messrs Winckworth Sherwood, wrote to the EAT in the following terms:

"We write regarding the above matter. It is our intention to submit amendments of the Notice of Appeal. As yet, we are not in position to do so, but we will provide you with them within four weeks. Yours Faithfully."

We do not know whether this letter was copied to the Respondents' solicitors. In any event, as we shall recount the Claimant did not provide amendments to the Notice of Appeal within four weeks of the 13 th January. On 26 January 2004 the Claimant filed her first affidavit. On 30 January 2004 Messrs Winckworth Sherwood wrote to the Employment Tribunal to ask that they might submit bundles with pages in excess of 100, the letter continued:

"Please note that wrote (sic)) on 30 January 2004 to advise you that we would be making amendments of the Notice of Appeal. We therefore reserve the right to add further documents for the preliminary hearing bundle, should this be required following amendment of the Notice of Appeal."

On 6 February 2004 the Registrar wrote to the parties enclosing a Notice of Hearing of the preliminary hearing for 20 April 2004.

[39]On 9 February 2004 the Employment Tribunal responded to Messrs Winckworth Sherwood's letter of 30 January 2004 granting permission to lodge bundles in excess of 100 pages "provided all documents are deemed necessary for the hearing of this matter". In relation to the letter of 13 January 2004 the Registrar specifically drew attention to paragraph 2(6) of the Employment Appeal Tribunal Practice Direction. "A party may not in a Notice of Appeal or a Respondent's answer reserve a right to amend, alter or add to it. Amendments can be made only pursuant to an order on an interim application and that should be made as soon as a need for amendment is known."

[40]On 10 February 2004 the Respondents lodged their affidavit and on 27 February 2004 the Chairman of the Employment Tribunal Mr Robinson wrote a letter to the EAT in response to the Claimant's affidavit. On 1 April 2004 the amended Notice of Appeal was sent to the EAT and to the parties. In its covering letter to the EAT Messrs Winckworth Sherwood explain that the delay in submitting the proposed amendments had been caused by the "extreme complexity of the amendments and Counsel's availability". The letter went on in these terms:

"We accept that the Respondents will probably need more time to consider the proposed amendments and that, in any event, the time required for the preliminary hearing will be, because of the application to amend, greater than one hour allocated and the case should therefore, respectfully be listed for half a day at a later date."

[41]It is on 7 April 2004 that the EAT wrote to Messrs Winckworth Sherwood to inform them that the application for adjournment had been referred to the Deputy Registrar who directed that the matter remain in the list for hearing on 20 April 2004 and the application to amend the Notice of Appeal would be dealt with by way of a preliminary point at the preliminary hearing. They were notified that they might renew their submissions by way of a preliminary point on that date.

[42]On 14 April 2004 the Claimant submitted her second affidavit in which she sought to explain the delay in presentation of the amended grounds of appeal. She records, for example, that Counsels' commitments prevented a consultation from taking place prior to 18 November 2003 and to the fact that Counsel was instructed to advise on certain matters affecting her continued employment with the 9 th Respondent. She submitted in her affidavit that she regretted "it was impossible to identify and articulate the full extent of my appeal grounds within the relevant time period". The affidavit then went on to consider certain specific allegations she made to the effect that she had been prevented from putting in certain documentation during the course of the hearing before the Employment Tribunal. She also filed an affidavit from a Mr Tomlin in support of her appeal.

[43]On 16 April 2004 the solicitors for the first five Respondents Messrs George Davies wrote to the Employment Tribunal seeking an adjournment to consider the amendments. This letter was not copied to the Claimant's solicitors.

[44]The preliminary hearing came before the EAT presided over by His Honour Judge Prophet on 20 April 2004. On that occasion Judge Prophet agreed to adjourn the preliminary hearing and gave appropriate directions, including permitting the Claimant to re-swear and re-serve her first affidavit and to re-serve the proposed Notice of Appeal as further amended. The Respondents were granted permission within 28 days to submit written representations on whether the proposed amendments should be permitted. The affidavit was amended and various minor alterations were made to the proposed amendments to the Notice of Appeal. On 24 November the Claimant served her third affidavit. At some point in time the Seventh, Eighth and Ninth Respondents an order was made that permitted to attend at the preliminary hearing to argue in person as to why the amendments should not be allowed. The proposed amendments

[45]The proposed amended Notice of Appeal does contain some fleshing out of the existing grounds by explaining the evidence that might have been given by Mr Weeks and Mr Brooks. This particular amendment is not objected to. However, we are not persuaded that the Employment Tribunal was ever told that Mr Brooks and Mr Weeks would have given such evidence. We will consider this point when we decide whether the case should go to a full hearing. There is also some fleshing out of the allegation relating to Mr Ross, although the amendments raise new issues also.

[46]However, there then follow some 26 pages containing new allegations of perversity in one form or another. The effect of these new allegations is to require detailed consideration of the evidence and documents before the Employment Tribunal. The thrust of the allegations is that the Employment Tribunal ignored specific pieces of evidence; and that it should have accepted certain evidence to be correct. It is asserted that many conclusions are unsustainable, the Employment Tribunal "perversely accepted hearsay". The amendments are replete with suggestions that findings are unsupported by evidence, that there are incorrect findings and that the Employment Tribunal was wrong to conclude that the comparative treatment of Mr Mowle was not part of a "continuing act"; see sections 68(7) (b) of the Race Relations Act 1976 and section 76(6) (b) of the Sex Discrimination Act 1975 .

[47]There is also extensive reference to additional documents and it is by no means clear whether all of these documents were before the Employment Tribunal. In so far as the documents were not before the Employment Tribunal in some cases it is said that the Employment Tribunal wrongly refused to receive them in evidence. By way of example in the original paragraph6.2.1 of the Notice of Appeal complaint is made of the fact that the Claimant was treated differently to other trainees, Mr Ross in particular, in that no training agreement was set up for her, no assessment, supervision or appraisal dates were set up, and no training goals given to her. She was, it is said, also treated differently in being assessed by her trainers during the early months of her training programme and that at paragraph 111 the Tribunal found [incorrectly] that she had not. By her amendments the Claimant seeks to widen the complaint to include additional respects in which she claimed to have been treated differently to other trainees; see paragraphs6.2.1.1 and

6.2.1.2 of the Amended Notice of Appeal. Similarly in paragraph

6.2.1.3 to 6.2.1.16.

6.2.2 of the Notice of Appeal, complaint is made that the Claimant was treated differently to other trainees in that she did not have formal meetings with her supervisors, whereas a Mr Ray did. It is said that the Tribunal found at paragraph 130 paragraph [incorrectly] that she was treated no differently to other trainees in not having such meetings. The Amended Notice of Appeal seeks to widen the allegation to include numerous other respects in which it said that she was treated differently to other trainees; see paragraphs

[48]During the course of his submissions Mr Hendy QC submitted that the bulk of matters upon which the Claimant now wished to appeal are set out in the amendments. We agree with this submission. The claimant's submissions

[49]Mr Hendy QC submitted that it was considered futile to have made an application to amend earlier than 1 st of April, so the Claimant waited until that date, which gave adequate time to the other parties to consider the matter prior to the preliminary hearing. However, in any event, it was impossible to complete the amendments until the end of March because time did not allow. Mr Hendy QC accepted that the amendment was delayed but he submitted the delay was reasonable. He informed us that the reasons for the delay were the non-availability of the Claimant's legal team and the need for further detailed consideration in many consultations. They had to consider a complex and lengthy decision with some 1,500 pages of documents. Over 40 hours were spent in consultation, preparation and drafting by leading Counsel alone.

[50]Mr Hendy QC informed us that all this material had to be explained to solicitors who did not have the benefit of a note made by a competent lawyer at the hearing at which the Claimant had represented herself. Many of the points now taken were not immediately apparent from reading the Employment Tribunal's decision or on considering the way in which the proceedings were conducted. It was necessary for the Claimant to explain issues to her legal team and this was an immense job. It was necessary to sift those issues which related to an appeal on questions of fact alone and those that were capable of forming the subject matter of a ground of appeal.

[51]Mr Hendy QC described the Notice of Appeal as "remarkable" in that it dealt with facts in an intricate way and that it was "unprecedented" in his experience to have so long and detailed a Notice of Appeal. The EAT, therefore, should exercise its discretion in giving latitude to the Claimant.

[52]Mr Hendy QC submitted that the Claimant was a lay person and was unable to prepare an adequate Notice of Appeal on her own. She had had to part company with her solicitors shortly before the hearing before the Employment Tribunal because they had demanded a substantial sum of money from her, although, she had the benefit of legal advice both prior to the date of the hearing before the Employment Tribunal, and thereafter. Mr Hendy QC did however, accept that the Claimant although a lay person in terms of legal proceedings was highly intelligent and had a considerable grasp of the complicated facts of her case.

[53]Mr Hendy QC, then submitted this was not a case in which it was appropriate to apply the strict rules relating to the time for bringing an appeal in considering whether he should have permission to amend. The Respondents, as we shall shortly explain, submitted that those rules, at least by analogy should be applied. It was important, he submitted to recognise that those rules were designed to inform parties whether there was going to be an appeal or not. Circumstances were quite different once it was known that there was going to be an appeal and questions of amendment should be considered quite differently. As a general principle, amendments to a Notice of Appeal should be allowed where there was no prejudice and no injustice caused to the Respondents.

[54]He submitted that the overriding objective is fundamental. "Justice" is the primary consideration and expedition another. Justice requires that where a party has good grounds of appeal, he or she should be entitled to ventilate them.

[55]Mr Hendy QC recognised that it might be more difficult to argue that amendments should be allowed if put forward at or shortly before the preliminary hearing. That was not the case as these amendments were provided almost three weeks before the preliminary hearing in April 2004.

[56]Mr Hendy QC invited us to apply the principles set out in CPR 17:3 which apply to amendments of statements of case and drew our attention to the note in the White Book at paragraph 17.3.5 and to the dictum of Peter Gibson LJ in Cobbold v London Borough of Greenwich CA (unreported 9 August 1999).

[57]Peter Gibson LJ said this:

"The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to other party or parties caused by the amendment can be compensated for in costs and the public interest in the efficient administration of justice is not significantly harmed."

[58]Mr Hendy QC explained that although the need for "some amendment" was foreseen shortly after the Notice was lodged, the full extent of the amendments to be sought was not known until finalisation of the draft amended Notice of Appeal on 31 March 2004. As the preliminary hearing had been listed (on 7 January 2004) for the 20 April and an interim application to amend was thought unlikely to be entertained in advance of that date, the obvious course was to make the application to amend at the preliminary hearing so as to avoid two hearings and the consequential additional burden on the resources of the EAT and the Claimant.

[59]Further, the application could not be made until the amendment had been drafted. Had application been made earlier to the Registrar, she would have said "come back when you are ready". We put it to Mr Hendy QC that she was more likely to have laid down a timetable within which application should be made, or referred the matter to a Judge for directions.

[60]So far as prejudice was concerned, in Mr Hendy QC's submission, the Respondents had suffered none and their position was no worse then had the proposed amendments been included in the original Notice of Appeal in November 2003. Further, as at the date of the hearing before us on 26 November 2004 they had known of the amendments for over six months and would not have been in a better position in January 2004, then they were in April 2004. He accepted, however, that if the amendments were allowed there would be a need to return to the Chairman and members of the Employment Tribunal for further comment on the Claimant's affidavits, to seek further affidavits from the Respondents and further notes of evidence from the Respondents and possibly from the Employment Tribunal. He recognised it would have been more economical to have had to do this once, rather than twice, and he also recognised that the amendments might lengthen the final hearing and cause some delay. The prejudice to the Claimant in being deprived of the opportunity of putting forward a substantial case far outweighed any prejudice to the Respondent. The bulk of matters on which she wished to appeal were set out in the amendments. He submitted that we should accept that the amendments raised real issues with a real chance of success, but it was not relevant at this stage to determine whether or not they did so; at this point in time we should assume that the proposed amendments have substantial merit.

[61]Mr Hendy QC's Skeleton Argument suggests that the Claimant's case is that the Employment Tribunal is "simply riddled with perverse findings and a number of errors of law" (paragraph 3). Mr Hendy QC did not either in his Skeleton or oral submissions go into any real detail as to the merits of the proposed amendments. The Respondents' submissions

[62]The Respondents 1 to 5 did not appear but written submissions were lodged on their behalf by Miss Gower. She naturally drew attention to the provisions of paragraph 2(6) of the Practice Direction. She submitted that an Appellant should not be able to circumvent the time-limit for appealing by substantially amending the Notice of Appeal at a later date. This submission was supported by Miss D'Souza who appeared for the 6 th , 7 th and 8 th Respondents. They submitted it could not be right that a person who put in a detailed Notice of Appeal a few days late should be in a different and worse position than an Appellant who put in a brief Notice of Appeal and then sought to make the most extensive amendments many months later.

[63]The starting point was obviously the overriding objective. Both Ms Gower and Ms D' Souza sought to persuade us that the appropriate analogy was with the cases of United Arab Emirates v Abdelghafar

[1995] ICR 65

(EAT Mummery J) approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd

[2000] IRLR 111

. These cases concerned the approach that should be adopted by the EAT to applications to extend the time for lodging an appeal from a decision of the Employment Tribunal. It is clear that these decisions recognise that the EAT takes a strict view of applications to extend time for appealing and that lack of prejudice to a Respondent is not determinative of any application to extend time. An Appellant is not entitled to an extension as of right and must provide a full, honest and acceptable explanation of the reasons for the delay. It was submitted that even if we do not in terms apply the principles set out in Abdelghafar common sense requires that we adopt a similar approach.

[64]It is perhaps convenient at this stage to set out the relevant passages in the decisions relied upon by the Respondents. In Abdelghafar Mummery J considered the principles applied by the Courts in considering whether to grant extensions of time under the then Rules of the Supreme Court. He drew attention to two intersecting principles; the first that rules [and orders] should be obeyed, and the second that a party should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. The application of these principles is sensitive to the stage at which the application is made. Applications to extend time made at an early stage in proceedings are far more likely to receive sympathetic consideration than those made in relation to an appeal.

[65]Mummery J pointed at paragraph 24 that:

"the approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings. (4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default."

[66]He then went on to set out the principles upon which the EAT should act in the following terms: "In accordance with the general principles stated above, the Appeal Tribunal follows the guidelines for the exercise of its discretion to extend time. They are only guidelines. They do not fetter the exercise of the discretion. They are intended to ensure, as far as possible, consistency of treatment, predictability of result and the attainment of justice.(1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance. When parties are notified of the reasons for the industrial tribunal's decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules. (2) The tribunal's discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later. (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are:(a) What is the explanation for the default?

(b) Does it provide a good excuse for the default?

[67]Mummery J's judgement was approved by the Court of Appeal in Aziz . The Court of Appeal recognised that the practice of the EAT was stricter than that of the Court of Appeal in hearing applications out of time. The EAT had the power to regulate its own procedure and had its own good reasons for requiring the parties to deal with proposed appeals expeditiously. We consider in any event that the Court of Appeal is now likely to take a stricter line with amendments to Notices of Appeal under the CPR that might cause delay. We say this because the CPR now reflects a policy in favour of finality; We refer to the notes to CPR 52.4.1 in the White Book 2004:

"2.4.1 Time for appellant's notice The appellant's notice must be filed within 14 days after the date of the decision under appeal, unless the lower court directs a different period. See rule 52.4(2). The brevity of the time allowed reflects a clear policy decision in favour of finality. Any party seeking to challenge a judicial decision must move with expedition. In the immediate aftermath of the judgment below both the party and his advisers are fully seized of the case. They can be expected to formulate any grounds of appeal without delay."

[68]In relation to applications to rely upon fresh evidence, it was submitted by Ms Gower and Ms D' Souza that the Claimant has failed to satisfy the Ladd v Marshall Test (referred to specifically in paragraph 8(2) of the Practice Direction.

[69]Ms Gower submitted that although the merits were not relevant to the application, she submitted in her Skeleton Argument why no arguable case was raised.

[70]She submitted that we should take into account in considering the issue of delay(a) the length of delay

(b) whether there had been any procedural abuse

[71]Ms D' Souza, who as we have said appeared for Respondents 6 to 8, repeated and adopted Ms Gower's submissions. She drew specific attention to the delay in making application until 1 April. She submitted that the delay made it more necessary than ever that there should be a satisfactory explanation as to why application was not made until 1 April 2004. She stressed that there was no right to an extension of time. It was an indulgence and the Claimant at the very least had to provide a full, honest and acceptable explanation for the delay. The explanations offered by the Claimant, which we have set out earlier, were not full, honest and acceptable explanations. At all times since the original grounds of appeal were lodged in November 2003 the Claimant had been represented by solicitors and Leading and Junior Counsel.

[72]She submitted that the amended grounds of appeal raised substantial factual issues and would require of necessity a re-visiting of much of the evidence before the Employment Tribunal together with further affidavits from the Respondents and notes of evidence and explanations from the Employment Tribunal. The time and expense of this process would be both disproportionate within the meaning of the EAT Practice Direction 1(4) (c) and would certainly not save expense; she referred to paragraph 1(4) (b) of the Practice Direction.

[73]The amended grounds 6.2.6 raised a major factual dispute as to what occurred at the hearing involving an Ms Thakkagupta. This dispute might require persons present at the Employment Tribunal having to give evidence.

[74]All in all, however, the amended Notice of Appeal did not raise any point of law but was simply an attempt to re-argue the facts.

[75]This was a case, submitted Ms D' Souza in which it could be seen that the individual Respondents had suffered prejudice. She pointed out, in particular, that Dr Feinmann (6 th Respondent) and Mr Gurusinghe (7 th Respondent) had endured questions marks as to their professionalism and integrity for over two years. Those question marks were resolved when the Claimant's claim was dismissed and when only a limited appeal was lodged; none of the original grounds of appeal related specifically to either Dr Feinmann or Mr Gurusinghe and they were entitled to assume that the litigation against them personally had been concluded. It was accordingly manifestly unfair to them to bring them back into the fray, so as to speak.

[76]Further and in any event, allegations went back as far as 1996. By the time the case ever gets before an Employment Tribunal again (assuming the amendments are allowed and that there is a successful appeal) recollections will have faded and it was unfair to reopen allegations after this amount of time.

[77]She concluded that cumulatively the application for permission to amend was an offence against the overriding objective having regard to the obligations to save expense, the obligation to deal with the case in a manner proportionate to its complexity and the importance of the issues and ensuring that it was dealt with not only fairly but expeditiously.

[78]In reply, Mr Hendy QC submitted that the rationale for strict time-limits in relation to lodging a Notice of Appeal concerned issues as to closure of litigation. In this case the litigation was not closed because the Respondents knew from the Notice of Appeal that there was an appeal in being and the EAT should accordingly not follow the approach adopted in Abdelghafar in relation to extending time for lodging an appeal. The position on amendment of an existing appeal was quite different. Conclusions

[79]We shall first set out our conclusions on the principles to be applied when the EAT considers applications to amend notices of appeal; the starting point is clearly the overriding objective which now appears both in the EAT Practice Direction and the EAT Rules from 1st October 2004. Rule 2A now provides:

"Overriding Objective 2A - (1) The overriding objective of these Rules is to enable the Appeal Tribunal to deal with cases justly, (2) Dealing with a case justly includes, so far as practicable – a) ensuring that the parties are on an equal footing; (b) dealing with the case in ways which are proportionate to the importance and complexity of the issues (c) ensuring that it is dealt with expeditiously and fairly, and (d) saving expense."

[80]It is also necessary to have in mind the provisions of the Practice Direction ( Employment Appeal Tribunal - Procedure ) 2002. We refer again to paragraph 2(6) 'Institution of Appeals': "(6) A party may not in a Notice of Appeal or a Respondent's Answer reserve a right to amend, alter or add to it. Amendments can be made only pursuant to an order on an interim application and that should be made as soon as the need for amendment is known."(our italics) .

[81]We also refer to paragraph 3 'Time for Serving Appeals' and in particular to 3(7) which provides:

"(7) In any case of doubt or difficulty, a Notice of Appeal should be lodged in time and an Application made to the registrar for Directions."

[82]It will be recalled that Peter Gibson LJ in Cobbold v London Borough of Greenwich August 9, 1999, CA had suggested that amendments to statements of case should be allowed in general provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs and the public interest in the efficient administration of justice is not significantly harmed. We do not consider that this principle can be applied without some modification, applications to amend Notices of Appeal in the Employment Appeal Tribunal, for a number of reasons. a) The Practice Direction requires specifically that applications to amend should be made 'as soon as the need for amendment is known'. There is no equivalent provision in the CPR. b) The approach of the EAT in ensuring that parties deal with proposed appeals expeditiously is, as Butler-Sloss LJ observed in Aziz v Bethnal Green Challenge Company Ltd 2000 IRLR stricter than the approach of the Court of Appeal, at least insofar as presenting notices of appeal within time limits is concerned. Those who practise in the EAT are well aware of its success in reducing waiting lists and in ensuring that all appeals are heard promptly. The current average time between presentation of a Notice of Appeal and the final hearing is now between 2 and 3 months unless there is a preliminary hearing, in which case the lead time is a little longer. The fact that appeals are heard so quickly reflects the importance the EAT attaches to the speedy resolution of employment disputes. c) The EAT takes a strict view of anything, including proposed amendments, that might delay a final hearing, especially in cases where there has been a failure to comply with a rule or a Practice Direction. The approach of the EAT is consistent with the fact that the period within which most claims can be brought in employment tribunals is significantly less than the relevant period of limitation for most civil claims dealt with under the CPR. Thus, for example, claims for unfair dismissal must be presented within 3 months of dismissal unless not reasonably practicable, and claims for discrimination on the grounds of disability, race, or sex, within 3 months of the act complained of, unless the time is extended by reason that it is just and equitable to do so. d) The regime in the EAT is still largely a 'cost free' regime; (see Rules 34A) which provides that an order for costs may only be made against a litigant where proceedings were 'unnecessary, improper, vexatious or misconceived, or there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of the proceedings' and see also (Rule 34C (3)) which allows a cost order to be made where costs have been wasted as a result of any improper, unreasonable or negligent act or omission on the part of any representative), Rule 34B - (1)) does provide an exception where a party '(a) has not complied with a direction of the Appeal Tribunal; or (b) he has amended its notice of appeal'. Nevertheless the EAT under rule 34B - (2) may have regard to the paying party's ability to pay when considering the amount of a costs order. There is no equivalent provision in the CPR.

[83]We also do not consider that the strict principles applied by the EAT to extensions of time for presenting Notices of Appeal, as set out by Mummery J in United Arab Emirates v Abdelghafar

1995 ICR 65

can apply in their entirety. We accept, in this regard at least Mr Hendy QC's submission that there is a difference in quality between an application to extend time for presenting an appeal, and an application to amend an existing Notice of Appeal. The important public interest in achieving closure and finality of litigation is stronger in cases where it is sought to extend time to bring an appeal.

[84]We also consider that the merits of the proposed amendment must also be relevant. Rule 3(7) of the EAT Rules provides that where it appears to a Judge or the Registrar that a Notice of Appeal discloses no reasonable grounds for bringing the appeal or that it is an abuse of the Appeal Tribunal's process or is otherwise likely to obstruct the just disposal of the proceedings, the Appellant is to be notified that no further action will be taken on the appeal, subject of course to the Appellant's right to amend. Further paragraph 9(7) of the Practice Direction ( Employment Appeal Tribunal - Procedure ) 2002 provides that the purpose of a preliminary hearing is to determine whether the grounds in the Notice of Appeal raise a point of law which gives the appeal a reasonable prospect of success at a full hearing; or for some other compelling reason the appeal should be heard. In cases where these conditions are not fulfilled the appeal will be disposed of at the preliminary hearing.

[85]We are accordingly of the view that no amendment can properly be entertained unless it at least raises a point of law which gives the appeal a reasonable prospect of success at a full hearing, or where there is some other compelling reason for the appeal to be heard. We are concerned however, that applications to amend should not become mini - appeals. We recognise that the case before us lasted in the Employment Tribunal some 20 days or more and that there were some five lever arch files of documents. The Claimant's own witness statement ran to some 364 paragraphs and that accordingly, of necessity, it may take longer to assess the merits or otherwise of the proposed amendments than in a shorter case in which the amendments raise clear cut issues of law.

[86]The EAT has a broad and generous discretion in applying its Rules and Practices so as to achieve the overriding objective of dealing with cases justly. We consider that, without wishing to set out an exhaustive list of considerations, the following are among the matters to be taken into account in determining whether or not an amendment should be allowed. a) Whether the applicant is in breach of the Rules or Practice Directions; in our opinion compliance with the requirement in paragraph in 2 (6) of the Practice Direction that an application for permission to amend a Notice of Appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals. b) Any extension of time is an indulgence and the EAT is entitled to a full honest and acceptable explanation for any delay or failure to comply with the Rules or Practice Direction, as Mummery J observed in Abdelghafar . c) The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including witness statements and notes of evidence. Such amendments if allowed are bound to cause delay and extra expense. The latter class of amendments should be contrasted with the first. In many cases in the first category the party against whom permission to amend is sought will be in no worse position than if the amended grounds had been included in the original Notice of Appeal. d) Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the Applicant by depriving him of fairly arguable grounds of appeal. We recognise that a party cannot be prejudiced in point of law simply because an argument is raised by way of amendment that saves what would otherwise be an unsustainable appeal. We also would suggest that the prejudice caused by refusing permission to amend to an Applicant who seeks permission to amend by adding fairly arguable grounds, but who has failed in a significant way to comply with the Rules or Practice Direction, or who has delayed excessively, is likely to carry less weight than in the case of an Applicant who has not delayed and has acted in accordance with the Rules and Practice Direction. e) In some cases it may be necessary to consider the merits of the proposed amendments, assuming they can be demonstrated to cross the appropriate thresholds we have mentioned earlier; that is to say as a general rule they must raise a point of law which gives the appeal a reasonable prospect of success at a full hearing. f) Regard must be had to the public interest in ensuring that business in the EAT is conducted expeditiously and that its resources are used efficiently.

[87]We are not able to accept Mr Hendy QC's submission that having regard to the Overriding Objective 'justice' requires that where a party has good grounds of appeal he wishes to bring by way of amendment he should be allowed to ventilate them. 'Justice' includes fairness to all sides and to the interests of the public in the efficient administration of Courts and Tribunals. We, therefore, consider that the merits of the proposed amendments alone cannot be a determining factor in the decision as to whether permission to amend should be given.

[88]We now turn to consider the application of the approach we have outlined to the application in this case.

[89]The first point must clearly be that the Claimant is in breach of the requirement in paragraph 2(6) of the Practice Direction that application to amend should be made 'as soon as the need for amendment is known'. Mr Hendy QC told us candidly that the need to amend was appreciated at the date of presentation of the original Notice of Appeal on 20th November 2003. The EAT and the other parties should have been notified then. That would be in accordance with what Mummery J had suggested in Abdelghafar . When Rimer J considered the Notice of Appeal and gave directions he would have been able to give directions in relation to the formulation of any proposed amendment when making the order of 7th January 2004 which led to a preliminary hearing being fixed for 20th April. Those directions included: a) an order that the Respondents be permitted to serve concise written submissions for the preliminary hearing; b) the filing of an affidavit by the Claimant setting out details of her complaints as to the conduct of the Tribunal; c) an order for the filing of the Claimant's Skeleton Argument prior to the preliminary hearing.

[90]It is unlikely that Rimer J would have made the 'sift' order in this form had he known that extensive amendments were to be made to the Notice of Appeal. The Claimant's legal advisers would have been aware that in accordance with the Practice Direction paragraph 11 (3) the EAT might, and probably would, require the Respondents to file affidavits and would invite comments on the various affidavits from the Chairman and lay members of the Employment Tribunal. Rimer J did make such an order (see paragraph 5) in which he invited a response from both the Employment Tribunal and the Respondents.

[91]As we have already said on 13th January 2004 the Claimant's then solicitors Messrs Winckworth Sherwood wrote to the EAT stating that it was their intention to submit amendments to the Notice of Appeal. They went on to state that they were not then in a position to do so but would provide them 'within four weeks'. They did not do so; nor did they alert the Respondents' solicitors. We see no reason why the EAT should not have received this notification with the Notice of Appeal. It could have then been considered by Rimer J when 'sifting' the appeal.

[92]The parties then began to comply with the order of Rimer J. The Claimant filed an affidavit, as did the two sets of Respondents. The Chairman of the Employment Tribunal, Mr Robinson sent a detailed letter on 27 th February.

[93]On 30th January Messrs Winckworth Sherwood sent a copy of the bundle for the preliminary hearing to the EAT. They referred to their letter of 13th January which we set out earlier and purported to reserve the right to add further documents to the bundle, should this be required following amendment of the Notice of Appeal. The hearing of the preliminary hearing was fixed on 6th February for 20th April and on 9th February the EAT wrote to Messrs Winckworth Sherwood and specifically drew attention to paragraph 2(6) of the Practice Direction; we refer to this letter earlier in our judgment. The Claimant's solicitors seem to have simply ignored what they were told in this letter.

[94]It was not until 1st April that the amended Notice of Appeal was served on the EAT and the Respondents. The Claimant clearly recognised that this would lead to an adjournment of the preliminary hearing because Winckworth Sherwood accepted in a letter to the EAT of 1st April that the Respondents would probably need more time to consider the proposed amendments and that longer than one hour would be required for the preliminary hearing.

[95]A further affidavit was lodged by the Claimant on 16th April together with an affidavit from a potential witness who was present at the hearing before the Employment Tribunal, Mr Tomlin. On 20th April the EAT presided over by His Honour Judge Prophet adjourned the preliminary hearing. It was ultimately re-fixed for 26th November. Mr Hendy QC told us that part of the reason for the delay in re-fixing the hearing was that there were proceedings in the High Court but we know nothing of these.

[96]It is apparent that a great deal of work has gone into the preparation of the amended Notice of Appeal. We recognise that there were many documents that needed to be considered and that a new legal team had to consider these matters. However, the Claimant has a firm grasp of the facts and we are satisfied would have been well aware of any factual errors or 'perverse' findings on the part of the Employment Tribunal. We are simply not satisfied that there has been any real attempt to comply with paragraph 2(6) of the Practice Direction and in our opinion the Claimant has acted without the appropriate degree of urgency. The amended Notice of Appeal was served some 4 ½ months after it was known that the original required amendment. The delay is excessive and in our opinion inexcusable. It is a matter of particular concern that despite the EAT itself drawing the attention of Messrs Winckworth Sherwood to paragraph 2(6) of the Practice Direction, no attempt was made for a further 7 weeks to serve the proposed amendments, causing the almost inevitable postponement of the preliminary hearing. Mr Hendy QC submitted that the delay in serving the proposed amendments was inconvenient but not unreasonable in the circumstances; we cannot agree. Neither can we agree that because the precise nature of the amendment was not known it was satisfactory to wait and make the application at the preliminary hearing. The EAT should have been notified at once so that appropriate directions could be considered for placing a time limit on any application to amend. The EAT would have at least considered placing a time limit on making application to amend at the sift stage.

[97]We have already referred to the exchange between Mr Springer and Mr Hendy QC, when Mr Hendy QC sought to explain the delay between the presentation of the Notice of Appeal on 20th November 2003 and the letter of 13th January 2004 to the EAT. Mr Hendy QC said that there had been a meeting in Manchester at which the Claimant hoped to arrive at a settlement which did not materialise. We know nothing of any such meeting but, as we have already noted, the explanation seems at odds with the letter of 1st April 2004 which does not advance this reason but refers to the delay having been caused by the 'extreme complexity of the amendments'.

[98]In short, there was excessive delay and no adequate explanation for the delay.

[99]We point out that the delay between the presentation of the Notice of Appeal and the final hearing of the appeal, assuming it goes to a full hearing, to allow for the obtaining of factual evidence from the Tribunal and Respondents will be well over a year, and probably over 18 months, as opposed to the usual two or three months with some short addition in cases where there is a preliminary hearing. This reinforces our concerns as to delay and our reluctance to countenance the delay in this case.

[100]We are also satisfied that the Respondents will suffer prejudice; a) The individual Respondents have already had this case hanging over them with serious allegations of discrimination since April 2001 which is a very long period indeed in the case of litigation in Employment Tribunals. Had there not been an application to amend we are confident that the appeal would already have been disposed of by now. The prejudice suffered by the individual Respondents in this regard should not be underestimated. Further, as Ms D' Souza submitted Dr Feinmann and Mr Gurusinghe might well have thought that the specific allegations against them were not the subject matter of the appeal as originally formulated. b) Mr Hendy QC himself recognised that there will be a need, if his application is successful, to return to the Chairman for further a further statement and to the Respondents for further affidavits and further notes, and that it would have been 'more economical' to have to do that once rather than twice. He also recognised that the effect of allowing the amendments may lengthen the final hearing and produce some further delay. c) If we were to allow the amendments to go to a full hearing we doubt if the appeal could be heard until the middle or end of 2005 at the earliest. The appeal will last considerably longer than the average appeal because of the volume of documentation involved and the need to scrutinise issues of fact to determine whether or not the findings complained of are perverse. The longer the time estimated for an appeal, the less easy it is to bring it on quickly. Further, were the appeal to be successful there would have to be a rehearing in the Employment Tribunal lasting in excess of 20 days. We doubt if such a hearing could take place until the end of 2005 at the earliest. The Employment Tribunal would then be faced with the difficult task of assessing factual issues that arose from 1997. d) The matters we have referred to in this paragraph are not only to the prejudice of the Respondents. We consider that there is no good reason in the public interest why, by reason of the Claimant's delay it should be necessary to refer back to the Employment Tribunal for further comments on the new allegations and for the Chairman's notes. If the amendments are allowed that course must be adopted. We also bear in mind that the Respondents will have to duplicate their responses, having already undertaken one round of affidavits they will be required to undertake another. They have also already had to duplicate their submissions; their first submissions were prepared on the basis of the original Notice of Appeal and further submissions had to be prepared for the hearing before us.

[101]We have not heard submissions on the merits of the proposed amendments and only limited reference to their supposed strengths and weaknesses have been made in written submissions. It is important to remember that the burden on an Appellant seeking to rely on perversity grounds in the EAT is a high one. We have well in mind the guidance offered by Mummery LJ in Yeboah v Crofton 2002 EWCA I. He said at paragraph 11:

"The function of the Court of Appeal is to review the proceedings in, and the decision of, the employment tribunal in order to determine whether a question of law arises from them. If the employment tribunal conducted the proceedings and delivered decisions in accordance with the law, no questions of law would arise for correction by this court: neither the Employment Appeal Tribunal nor this court would be entitled to interfere with the original decisions, even if they concluded that they might have conducted and decided the cases differently. [12] When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the employment tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the employment tribunal. Only the employment tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an employment tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions .of law, which it is claimed arise on the conduct of the proceedings and the decision of the employment tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the employment tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the employment tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal."

[102]Later in the judgment he said this at paragraph 92:

"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications pic v Sheridan [1990] IRLR 27 at paragraph 34. [94] Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination [95] Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions."

[103]We are left with the unhappy feeling that the proposed amendments amount to an attempt to present an appeal on the facts which is impermissible, under the guise of an appeal on the grounds of perversity. We do not need to decide the point because we are satisfied in the exercise of our discretion that the delay in bringing forwards the amendments and the breach of paragraph 2(6) of the Practice Direction alone justify the refusal of permission to make the amendments. If we are wrong as to this then, again in the exercise of our discretion, we would refuse permission to amend by reason of the cumulative effect of those matters together with the prejudice we have identified.

[104]In those circumstances, even if we considered that the proposed amendments raised a point of law that would give the appeal a reasonable prospect of success at a full hearing; we should nevertheless refuse to allow them.

[105]We are not able to accept Mr Hendy QC's submission that the Respondents have suffered no prejudice and are no worse off today than they would have been had the amended grounds been included in the original Notice of Appeal. We are also not able to accept that because the Respondents have known of the proposed amendments for over 6 months they would not have been in a better position in April 2004 than in January 2004. This submission overlooks the serious failures on the part of the Claimant to make her amendment promptly in accordance with the requirements of the Practice Direction, and the additional delay and expense and prejudice that allowing the amendments now, will cause. Insofar as the Claimant seeks to adduce fresh evidence to support the amended grounds of appeal (at section 4 of the Appeal bundle) we are minded to accept the submissions of the Respondents that the Claimant has failed to satisfy the Ladd v Marshall tests because they could have been placed before the Tribunal with the exercise of reasonable diligence and we doubt whether their admission would have had an important influence on the result of the case.

[106]In all the circumstances despite Mr Hendy QC's careful and attractive submissions, his application for permission to amend must be refused.

[107]There is one final matter to deal with. Mr Hendy QC seeks the costs of his attendance at the preliminary hearing before His Honour Judge Prophet on 20th April. As we have already recalled, on 1 st April Messrs Winckworth Sherwood wrote to the EAT and suggested that that the Respondents would probably need more time to consider the proposed amendments and as the hearing was now likely to last more than an hour, asked that the preliminary hearing be re-listed for half a day to accommodate submissions on the amendments. The Registrar declined to take the case out of the list for 20 th April in a letter to Messrs Winckworth Sherwood copied to Messrs George Davies.

[108]On 16th April, Messrs George Davies (who acted for the 1st to 5th Respondents) wrote to the EAT seeking a further 28 days in order to comment on the amendments but did not copy the letter to Messrs Winckworth Sherwood. The matter was raised with Mr Hendy QC by His Honour Judge Prophet at the preliminary hearing and he agreed to an adjournment. He submits that although it was necessary for there to have been a hearing on 20th April it would not have been necessary for leading Counsel to attend had the letter from Messrs George Davies been copied to Winckworth Sherwood.

[109]We do not agree. Even if all parties agreed to an adjournment of the preliminary hearing it should not be presumed for one minute that the EAT would have granted one. An adjournment is always discretionary and by reason of the history we have already recounted the EAT may have taken an unsympathetic view of the late amendment in any event. A hearing was certainly required and as we have said, it should not be presumed that an adjournment would have been granted as matter of course. It is also the case that Winckworth Sherwood did not copy its letter to the EAT of 1st April to Messrs George Davies.

[110]We do not consider that our power to award costs under Rule 34 (1) of the EAT Rules is engaged, because we do not consider that costs have been wasted as a result of any improper, unreasonable or negligent act or omission on the part of Messrs George Davies, (Rule 34C (3). However, even if that were to be the case, we would not make an order in this case in the exercise of our discretion because we consider that the adjournment was caused by the default of the Claimant and her legal team and that the Claimant should have appreciated that an adjournment might well not be granted having already been refused by the Registrar. We note that in its letter of 30th April Messrs George Davies wrote to Messrs Winckworth Sherwood suggesting that their own application for an adjournment had also been refused by the Registrar. We do not take into account the fact that on 20th April His Honour Judge Prophet gave directions for service of a re-sworn affidavit by Dr Khudados and service of a re-amended Notice of Appeal.

[111]In the circumstances we decline to make any order for costs.

[112]We propose to deliver a separate judgment in which we consider whether the original Notice of Appeal raises a point of law which gives the appeal a reasonable prospect of success at a full hearing.