COUNCIL OF THE CITY OF NEWCASTLE UPON TYNE v MR J MARSDEN [2010] UKEAT 0393_09_2301

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0393_09_2301

Case No Appeal No. UKEAT/ 0393/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

COUNCIL OF THE CITY OF NEWCASTLE UPON TYNEAPPELLANT

MR J MARSDENRESPONDENT

Before

Mr Justice Underhill

Date 23 January 2010

[1]APPEARANCES For the Appellant MR JAMIE ANDERSON (of Counsel) Instructed by: City Solicitor Newcastle City Council Civic Centre Newcastle upon Tyne NE99 2BN For the Respondent MS JANE CALLAN (of Counsel) Instructed by: David Gray Solicitors Old County Court 56 Westgate Road Newcastle upon Tyne NE1 5XU SUMMARY PRACTICE AND PROCEDURE - Review Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer adjournment if absence of Claimant had been explained and adjournment applied for – Counsel tells Judge that he does not know reason for Claimant's absence and fails to apply for adjournment – At subsequent review hearing Claimant proves that counsel had given him express advice that he need not attend PHR - Judge revokes dismissal of claims and orders further hearing. Held : Although the Judge's detailed reasoning was to some extent defective, the substantive decision was correct: although generally a review would not be permitted on the basis that evidence that should have been called first time round had not been called as a result of the error of a representative, counsel's lack of frankness with the Tribunal, which cost the Claimant the chance of an adjournment, was an exceptional circumstance which rendered it just to revoke the strike-out – Consideration of the extent to which earlier cases such as Flint v Eastern Electricity Board and Lindsay v Ironsides Ray & Vials , which emphasise the weight to be attached to finality and suggest that a review cannot generally be justified on the basis of the incompetence of a party's representative, require reconsideration in the light of the over-riding objective - Sodexho v Gibbons and Williams v Ferrosan considered. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) This is an appeal against a decision of Employment Judge Hargrove in the Newcastle upon Tyne Employment Tribunal sent to the parties on 15 July 2009. By that decision he revoked an earlier order striking out the Claimant's claims under the Disability Discrimination Act 1995 .

[2]I heard argument on 18 January 2010 and gave judgment dismissing the appeal on 23 January, with reasons to follow. These are my reasons.

[3]The Claimant was represented before me by Ms Jane Callan and the Appellant by Mr Jamie Anderson.

[4]The Claimant brought proceedings in the Employment Tribunal against his employer, Newcastle City Council, making claims of, inter alia disability discrimination. The disability alleged was said to result from an injury to his left ankle. There is no dispute that the injury occurred, but there was an issue about whether it gave rise to a disability within the meaning of the Act, and more particularly about whether its effects were likely to last for more than twelve months, as required by para. 2 (1) of Schedule 1 to the Act.

[5]On 27 March 2009 a pre-hearing review was held before Judge Hargrove in order to determine the issue of disability. Both parties were represented by counsel. As will appear, serious criticism has been made of the conduct of the Claimant's counsel: since he has not had the opportunity to answer that criticism, I will not name him. The Respondent was represented by Mr Anderson. The Claimant did not attend. The only evidence put before the Tribunal in support of the claim of disability was a medical report. That dealt in some detail with the nature of the injury but did not – or in any event did not adequately – address the question of its continuing effects. The Judge at an early stage in the hearing expressed the view that on that issue it was necessary to have evidence from the Claimant himself. There had – for reasons into which I need not go – been no direction for exchange of witness statements, and accordingly any evidence would have to be given by the Claimant in person. Counsel, as the Judge recorded at para. 3 of the Reasons, was "… unable to say whether his client was advised by his legal representatives that he would be required to attend the pre-hearing review." Counsel said that he would try to procure the Claimant's attendance in the afternoon; but in the event that proved impossible. As the Judge also recorded at para. 3: "… [N]o application to postpone has been made in order to call the claimant, which the Tribunal might have entertained subject to a high degree of probability that an order for costs would have been made against the claimant or his representatives in respect to today's hearing." (An application for an adjournment was made by counsel for the Claimant on a different basis, but it was rejected.)

[6]In those circumstances the Judge felt obliged to dismiss the claim of disability discrimination. He gave his decision at the conclusion of the hearing and subsequently produced written Reasons which were sent to the parties on 7 April 2009. It is common ground that the effect of his decision was also, to put it no higher, seriously to undermine the Claimant's principal remaining claim, which was for unfair dismissal, since the essence of the unfairness alleged was a failure to make reasonable adjustments.

[7]The Claimant applied for a review of that decision under rule 34 of the Employment Tribunal Rules of Procedure . Para. (3) of that rule provides (so far as material) as follows:

"... decisions may be reviewed on the following grounds only: (a) the decision was wrongly made as a result of an administrative error; (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or (e) the interests of justice require such a review."

The basis of the application was that it was in the interests of justice that the decision be reviewed because the only reason that the Claimant had not attended the pre-hearing review was that counsel had advised him, at a conference a few days previously, that his attendance was unnecessary.

[8]Judge Hargrove directed a review hearing under rule 36. The hearing took place before him on 3 July 2009. Mr Anderson again appeared for the Council. The Claimant was now represented by Ms Jane Callan of counsel. At the hearing Mr Anderson had two main points and a number of supporting points, which I can summarise as follows.

[9]First, he contended that the essence of the Claimant's case was that he wished to adduce "new evidence", namely his own, and that an application on that basis should only be allowed if it satisfied the requirements specified in head (d), i.e. (in effect) that the evidence had not been available at the hearing: an applicant should not be allowed to circumvent those requirements by invoking head (e). He relied on the decision of Phillips J in Flint v Eastern Electricity Board

[1975] ICR 395

. In that case, an employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He applied for a review under rule 12 of the Schedule to the Industrial Tribunals (Industrial Relations Etc) Regulations 1972 , the material parts of which are in identical terms to rule 34, on the basis that it was in the interests of justice that he should be given the chance to give the omitted evidence. The industrial tribunal, by a majority, refused the application. Phillips J upheld that refusal. At pp.

(d) and (e):

"The difficulty comes in the relationship between paragraphs (d) and (e) of rule 12 (1). The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals. But I do not think that it can embrace a case where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d). And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d), would fail under paragraph (e) also. Paragraph (e), I think, exists for the case which, although it may be put forward under paragraph (d), has in it some special additional circumstance which leads to the conclusion that justice does require a review."

At pp. 404-5, having pointed out that a claim under head (d) was hopeless because the Claimant knew the fact in question and had simply failed to appreciate its materiality, he said this:

"If the case were to succeed, in my judgment, it would have to be under rule 12 (1) (e), that "the interests of justice require such a review"

. Well, now, what are the interests of justice in a case like this? One view is expressed by the majority of the tribunal; another view is expressed by the dissenting member. It is necessary, it seems to me, to weigh a number of matters, bearing in mind first of all that paragraph (e), in a case of this kind. has to be applied with one eye on paragraph (d). I put it that way. I have said, I do not regard them as mutually exclusive. But I do think that it is necessary, in a case which otherwise falls within paragraph (d) - when I say "falls within" paragraph (d), I mean a case which would be put forward under paragraph (d) - to find some other circumstance, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one's sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered. But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review." Mr Anderson submitted that those observations applied to the present case. The case was prima facie one falling under – but not satisfying the requirements of - head (d), because the Claimant wished to adduce new evidence (namely his own), and there was no "other circumstance" capable of attracting the operation of head (e).

[10]Secondly, he relied on the decision of this Tribunal in Lindsay v Ironsides Ray & Vials

[1994] ICR 384

. In that case the industrial tribunal had refused the applicant an extension of time under s. 68 (6) of the Race Relations Act 1976 to bring her claim of race discrimination; although the issue was before the tribunal, the applicant's representative made no submissions about it at all, with the result that the tribunal failed to appreciate a material fact. The applicant applied for a review under rule 10 (1) (e) of Schedule 1 to the Industrial Tribunals (Rules of Procedure) Regulations 1985 – which is, again, in identical terms to the current rule 34 (3) (e); and the review was granted. This Tribunal held that an application for a review was the wrong way to challenge the tribunal's error. At pp. 393-4 Mummery J. referred to Flint and to the later decision in Trimble v. Supertravel Ltd.

[1982] ICR 440

, which appears to prescribe that resort to this ground of review should be limited to cases of, as Mummery J summarised it (at p. 394A):

"… a "procedural mishap" or "procedural shortcoming," or "procedural occurrence" of a kind which constitutes a denial to a party of a fair and proper opportunity to present a case."

He continued, at p. 394 C-E:

"Failings of a party's representatives, professional or otherwise, will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to reargue his case by blaming his representative for the failure of his claim. That may involve the tribunal in inappropriate investigations into the competence of the representative who is not present at or represented at the review. If there is a justified complaint against the representative, that may be the subject of other proceedings and procedure. It is thus our view that the industrial tribunal erred in law in granting a review under rule 10(1)(e) of the Rules of Procedure of 1985."

Again, Mr Anderson submitted that those observations applied directly to the present case.

[11]Of Mr Anderson's supporting points I need mention only one. He submitted that the Claimant could always claim compensation from his counsel for the loss of his tribunal claim; and in that connection he pointed out that he might have a remedy through the Bar Standards Board without having to undertake the burden of bringing a claim for professional negligence in the courts.

[12]The Judge revoked his original decision and directed a further hearing at which the issue of the Claimant's disability would be determined. His reasoning in the written Reasons can be summarised as follows:(1) At paras. 1 and 2 of the Reasons he refers shortly to the previous history, including in particular counsel's failure to offer any explanation for the absence of the Claimant and his omission to make any application for an adjournment on that ground.

(2) At para. 3 he makes his findings of fact on the reasons for the Claimant's absence. These are not challenged, but I should set them out in full. They are as follows:

" I am satisfied by the claimant's evidence today supported by the trainee solicitor present at the conference that there was a conversation in Counsel's chambers waiting area where the claimant had been sent before Counsel and Miss Harris [the Claimant's solicitor] discussed the case privately for a short time after the end of the conference with the client. In the waiting area afterwards the claimant specifically asked if he needed to attend the pre-hearing review and was told by Counsel that he need not. Very regrettably Counsel failed to inform me of this fact at the pre-hearing review. I do not wish to be unnecessarily critical of Counsel but it is a cardinal principle of both sides of the legal profession that if a representative makes an error of this kind, in the interests of his client he should admit it at the earliest possible moment. He should have informed the Tribunal and made an application for a postponement on that ground. If he had done so, as I indicated in paragraph 3 of my reasons I would very probably have allowed it subject to an order for costs which should not in this event have been disputed and should not have been paid by the claimant." (3) At para. 4 the Judge refers to a problem which had arisen as to whether the nature of the Claimant's case in support of the review application required him to disclose what would otherwise have been privileged material in relation to the conference with counsel. That issue had had to be referred to another Employment Judge in the course of the hearing, and had resulted in some, very limited, further disclosure. (4) He then refers to Mr Anderson's submission that the case did not fall under any of the heads of rule 34 (3). He says this. "… He has referred to cases under the old rules which are not in my view of great assistance because (a) the rules have materially changed or at least Rule 34(3)(a) now refers to "administrative error" as opposed to "error on the part of the Tribunal" and (b) the rules are now prefaced by the overriding objective introduced following the Woolf reforms. As Williams v Ferosan [2004] IRLR 607 page 608 indicates, the landscape has changed. See also the judgment of Judge Peter Clark in Sodexho Limited v Gibbons [2005] IRLR page 837 (BAILII: [2005] UKEAT 0318_05_2907 ) and the comments in particular at paragraphs 46 to 52."

It is common ground that the principal "cases under the old rules" to which the Judge was referring is were Flint and Lindsay . (5) In the initial part of para. 5 the Judge develops the point appearing in the passage which I have just quoted about rule 34 (3) (a) and appears to hold that the facts of the present case fall within the terms of that rule. No such case had been advanced by Ms Callan and the proposition seems to me, with all respect to the Judge, obviously wrong: counsel's mistake in advising the Claimant that he need not attend could not in any ordinary use of language be described as an "administrative error", and neither of the cases to which he refers supports such a conclusion. Ms Callan did not seek to defend this part of the Judge's reasoning.

(e) As to that, he says this:

"5. … The circumstances certainly fall within the definition of interests of justice under Rule 34 (3) (e) which is not to be construed as restrictively as it was prior to the 2004 rules (see proposition 4 paragraph 46 in Sodexho, which robs the cases relied upon by Mr Anderson of much of their force). I am inclined to agree with Mr Anderson, however, that this is not a Rule 34 (3) (d) case because the claimant was always aware of the evidence that he had had concerning his disability, although he did not have knowledge at the time of the hearing that his Counsel had made a serious error and not admitted it. However Mrs Callan does not put her case on his behalf on that basis. 6. In summary, my reasons for so interpreting Rule 34 (3) (e) are as follows:- (i) Having read the claimant's witness statements, one undated and another dated 29 April 2009 I think it is highly likely that had he been present at the pre-hearing review and given evidence, subject to it being believed, he would have succeeded on the long term effect principle which was the decisive factor upon which I was not satisfied at the pre-hearing review. The non-calling of the claimant was a fundamental reason for his failure. (ii) No fault whatsoever can be attributed to the claimant personally in this respect. (iii) If the application for a review is refused the claimant's claim in its entirety (including the unfair dismissal claim) is likely to fail. I am far from satisfied that the claimant would be adequately compensated by his right to bring a claim against his former Counsel's insurers. There might for example be an argument that negligence actually during the course of a Hearing is not actionable. Certainly there would be considerable delay in dealing with the matter. That is a relevant factor which I am entitled to take into account. It is not one to be ignored as occurred in Flint v Eastern Electricity Board [1975] ICR page 395. Judge McMullen QC found the possibility of recovering from insurers as not being "a proper consideration, or if it is it should not be weighed too heavily" (see paragraph 9 of his judgment in a much more modern case of Euro Hotels (Thornton Heath) Limited v Mr M Allam UKEAT/0006/09 20 April 2009, BAILII: [2009] UKEAT 0006_09_2004 ). This principle is in line with decisions such as Chohan v Derby Law Centre [2004] IRLR 685 page 685 in connection with time limits. (iv) Any injustice to the respondent could be adequately cured by an appropriate order for costs. The costs of the hearing on 27 March have already been recovered by the respondent from Counsel's insurers. There is no injustice in refusing to allow the respondent to benefit from a fundamental error by the claimant's Counsel which led to the respondent succeeding in a submission on which it would, in my view, have probably failed if the error had not occurred and the claimant had attended to give evidence. The benefit to the respondent was an unmerited windfall."

[13]Thus the basis on which the Judge rejected Mr Anderson's submissions based on Flint and Lindsay was that he regarded them as having been superseded by the introduction of the over-riding objective – that is, by reg. 3 of the Employment Tribunals (Constitution & Rules etc) Regulations 2004 (to which the Rules constitute Schedule 1). Reg. 3 reads:

"(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and Employment Judges 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 complexity or importance of the issues; (c) ensuring that it is dealt with expeditiously and fairly; and (d) saving expense. (3) A tribunal or Employment Judge shall seek to give effect to the overriding objective when it or he (a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or (b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6. (4) The parties shall assist the tribunal or the Employment Judge to further the overriding objective."

The Judge believed that that conclusion followed from the decisions of this Tribunal in Williams v Ferrosan Ltd

[2004] IRLR 608

and Sodexho v Gibbons

[2005] ICR 1647

. I should therefore set out what was decided in those cases.

[14]In Williams an employment tribunal had wrongly assessed compensation on the basis that the claimant would attract no tax liability on future earnings. The mistake was the result of a misunderstanding of the legal position shared by both parties' representatives and the judge. When the mistake emerged the claimant sought a review. The tribunal declined to grant one, relying principally on what it regarded as the established position on the authorities that the only correct way of challenging an error of law by the tribunal, even if caused by an error by the parties' representatives, was by way of appeal. Hooper J. in his judgment reviewed the decisions in Trimble (above), which itself referred to the decisions in D.G. Moncrieff (Farmers) v MacDonald

[1978] IRLR 112

and British Midland Airways Ltd v Lewis

[1978] ICR 782

), which appeared to say that a review under rule 10 (e) would only be appropriate "in exceptional circumstances", and said this, at para. 12 (p. 609):

"This case and the cases cited therein preceded the introduction in 2001 of rule 10 (the overriding objective). In the Moncrieff case it is said that the review procedure is 'only appropriate in exceptional circumstances'. The EAT in Trimble did not demur from this proposition and said that it would only be in exceptional cases that a review is appropriate. In the light of rule 10 we express some doubt about the need to show 'in exceptional circumstances'. Those words do not appear in rule 13(1)(e) which, as we have seen, provides that a tribunal shall have the power to review any decision on the grounds that the interests of justice require a review. It seems to us that there is a difference between saying that a case to which rule 13(1)(e) applies will in practice be unusual or exceptional and saying that rule 13(1)(e) should be read as if inserted into it are the words 'exceptional circumstances'. We see no reason now in the light of rule 10 that some sort of: 'exceptionality hurdle' should be read into rule 13(1)(e). One of the many advantages of the Civil Procedure Rules has been that a rule which, prior to the introduction of the CPR, had become 'encrusted' by numerous cases can be looked at afresh."

Hooper J. proceeded to refer also to the unreported decision of this Tribunal in Dhedhi v United Lincolnshire Hospitals Trust

EAT/1303/01

, BAILII:

[2003] UKEAT 1303_01_2503

, in which the passage from the judgment of Mummery J in Lindsay which we have set out above was quoted. After referring to the respective submissions of the parties - relying, on the one hand, on the over-riding objective and the savings in cost and expense in dealing with the matter by way of review rather than appeal and, on the other, on the importance of the principle of finality in litigation - Hooper J. said this, at para. 17 (p. 610):

"Although this is not a case where a party has been denied a fair opportunity to present its case before the tribunal, it seems to us that the 'dangerous path' argument adverted to by Mummery J is less persuasive when, as in this case, the mistake was made by both parties and by the chairman. If the error is more than a minor one, that does not, in the light of Trimble prevent a review. It being agreed that this error would have been corrected by the EAT if an appeal had been launched and a necessary extension of time given, it seems to us, in accordance with rule 10, that using the review procedure to remedy the error saves expense and helps to ensure that the matter is dealt with expeditiously. As was said in British Midland Airways , an 'appeal takes much longer and is much more expensive'. On the facts of this case, we have no doubt that the 'interests of justice' required that the error be put right at a review and that putting it right at a review would be dealing with the case 'justly'."

[15]In Sodexho a claim had been struck out for non-payment of a deposit ordered under rule 20 (1) of the Rules. It turned out that the claimant's solicitors had never received the order because the wrong post-code had been given on the ET1. An employment judge granted a review under rule 34 (3) (a), on the basis that the supplying of the wrong code had been an "administrative error" on the part of the claimant and in any event that the revocation of the strike-out was in the interests of justice under rule 34 (3) (e). In his judgment in this Tribunal Judge Clark acknowledged the numerous past cases in which head (e) had been restrictively interpreted, including Flint , Trimble , and Lindsay (see para. 46, at pp. 1656-7); but he then referred to Williams , observing (see para. 47, at p. 1657) that it deserved rather more prominence than it hitherto received. He went on to uphold both bases of the Judge's decision. At para. 78 of his judgment (p. 1662), he gave a summary of his conclusions, including, as point (4), that:

"The 'interests of justice' ground for review contained in rule 34(3)(e) should not be construed as restrictively as it was before the 2001 Rules introduced the overriding objective, now contained in regulation 3 of the 2004 Regulations. See Williams v Ferrosan ."

[16]Williams and Sodexho clearly show that the extensive case-law in relation to rule 34 (3) (e) and its predecessors should not be regarded as requiring tribunals when considering applications under that head to apply particular, and restrictive, formulae - such as the "exceptionality" and "procedural mishap" tests which were understood to be prescribed by Moncrieff and Trimble . I would not in any way question that approach or the general message of both decisions. There is in this field as in others a tendency – often denounced but seemingly ineradicable - for broad statutory discretions to become gradually so encrusted with case-law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case. Thus a periodic scraping of the keel is desirable. (The exercise would indeed have been justifiable even apart from the introduction of the over-riding objective. It is not as if the principles of the over-riding objective were unknown prior to their explicit incorporation in the Rules in 2001: rule 34 (3) (e) itself is based squarely on the interests of justice. But I can see why its introduction has commended itself to judges of this Tribunal as a useful hook on which to hang an apparent departure from a long stream of previous authority.)

[17]But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd .

[2008] ICR 841

, at para. 19 of his judgment (p. 849), it is "basic" "… that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made." The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation – or, as Phillips J put it in Flint ... at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry – seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal's decision on a substantive issue as final (subject, of course, to appeal). Likewise, I respectfully endorse, for the reasons which he gives, the strong note of caution expressed by Mummery J in Lindsay about entertaining a review on the basis of alleged errors on the part of a representative. Lindsay was referred to in both Williams and Sodexho , but Mummery J's observations on this aspect were not disapproved: at para. 17 of his judgment in Williams (set out at para. 14 above) Hooper J. said only that the dangers to which Mummery J referred were of less concern on the facts of that particular case.

[18]To the extent, therefore, that the Judge felt free to ignore Flint and, in particular, Lindsay on the basis that the over-riding objective had made them irrelevant, I believe that he went too far. Other errors can also be detected in his detailed reasoning on the alternative remedy issue. In particular:(1) The suggestion at para. 6 (iii) of the Reasons that the Claimant's counsel might not have owed him a duty of care in relation to the advice whether he should attend the hearing seems plainly wrong in the light of the decision of the House of Lords in Arthur J.S. Hall & Co v Simons

[2002] 1 AC 615

(2) The suggestion in the same sub-paragraph that the possibility of recovery against a third party was inherently of little or no weight seems to me to go further than the authorities would support.

[19]But it does not follow that the Judge's decision, or his fundamental reasoning, were wrong. It is clear that he attached decisive weight to the (related) facts(a) that the Claimant's counsel misled the Tribunal and

(b) that by doing so he deprived him of the opportunity of an adjournment which would otherwise have been granted: see para. 12 (2) above. Those are an exceptional circumstance. They take the case outside the straightforward "fresh evidence" category which, as Phillips J accepted in Flint , falls to be dealt with under head (d). They also take it outside the ordinary run of cases where a party suffers from the wrong, or indeed incompetent, advice of his representative. Whereas in a case of that kind the overall interests of justice, and in particular the weight to be attached to finality in litigation, may well require that a party bear (as between himself and the other party) the consequences of the errors of his own representative, the Judge was entitled to take a different view on the particular facts of the present case. It was peculiarly hard on the Claimant to have to bear the consequences of what the Judge found to be plain misconduct - at least where, as here, the Council suffered no prejudice beyond the fact that a case which they believed to be done with would have to be re-opened; and the importance of maintaining finality in litigation could reasonably be judged to be outweighed by the peculiar injustice to him. That does not necessarily dispose of the concern identified by Mummery J in Lindsay about the tribunal having to conduct an "inappropriate investigation" into counsel's advice; but in the present case the relevant investigation was confined to the narrow factual question of whether counsel had indeed advised the Claimant that he need not attend: once that were established, it was within the Judge's own knowledge that he had been misled.

[20]As regards the errors in the Judge's reasoning on the alternative remedy point noted at para. 18 above, although the Judge may have gone too far in discounting this point altogether, the trend of the modern authorities in this and analogous situations is to emphasise the inherently less satisfactory nature of such a remedy. In this connection I should mention a contention by Mr Anderson to the effect that the Judge failed to address submissions made by him about the availability of a remedy through the Bar Standards Board. There is in fact considerable doubt whether any remedy available through the Board's procedures would be adequate; but in any event I am satisfied that the point was not of such substance that it required to be specifically addressed.

[21]I would accordingly uphold the Judge's decision. Further, even if I took the view that the errors to which I have referred above were sufficient to vitiate the exercise of his discretion, the parties were agreed that I should in that case determine the issue myself, exercising my powers under s. 35 (1) of the Employment Tribunals Act 1996 ; and I would on balance reach the same decision as the Judge, for the reasons given in the previous two paragraphs.

[22]It is for those reasons that I dismissed the Council's appeal.

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