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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K v Cheshire Burgess Chief Constable [2002] EWCA Civ 1711 (6 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1711.html Cite as: [2002] EWCA Civ 1711

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London, WC2 Wednesday, 6 November 2002

1. LORD JUSTICE JUDGE: I am not going to give a reasoned judgment. The hearing has been conducted very much on the basis of a discussion between the applicant and the court about a number of different issues arising in these linked applications for permission to appeal. It is sufficient for present purposes to say that at the heart of the applicant's concern is that there should be restricted reporting orders for which provision is made under the Employment Tribunal Rules and Procedure. In particular, his concern is for the application of Rule 15 (6) and Rule 16 (1).
2. There are two quite separate applications. One, which I will deal with first, is an application for permission to appeal against the order made by His Honour Judge Serota on 6 September 2002 in relation to an application to the Employment Appeal Tribunal due to be heard next week on 13 November. The order imposed reporting restrictions under what was then Rule 23 (2) of the Employment Tribunal Rules, intended to reflect the modern rules, and in these terms - nothing relevant to these proceedings shall be published or made known which might reveal the name, address or otherwise lead to the identification of the party `K' named in the originating application. The order went on to require that it remain in place until the preliminary hearing when the Employment Appeal Tribunal would consider the merits of the appeal and also whether the restricted reporting order should continue. It further provided that it should extend to any outstanding proceedings between the parties at Liverpool Employment Tribunal. That order seems to me to give the applicant all the protection to which she is entitled.
3. In reality in the course of the discussions her concern is to ensure that it will be reinforced in some way and certainly not set aside before the hearing of 13 November. I understand that concern. I recognise that these are extremely sensitive issues, but those concerns do not justify me giving permission to appeal an order which, as it stands, does provide the appropriate protection. As to whether, if the Employment Appeal Tribunal were to decide that the restricting reporting order should not continue after it had considered the merits of the appeal, on that point the applicant's position is preserved, and she would be entitled to seek permission to appeal any order discontinuing the restricted reporting order. As to that, I can say nothing because the decision will have to be made by the Employment Appeal Tribunal on the material then before it, and the question whether to allow permission to appeal would again depend on the material available to the court. The first application should be refused.
4. The second application arises in a slightly more complicated way. The issue as defined by the President, Mr Justice Lindsay, in his judgment on 23 May 2002 was, as he put it, a somewhat technical one as to the Employment Tribunal's jurisdiction to make a restricted reporting order. The Employment Tribunal came to the conclusion on 9 August that it had no such jurisdiction. The judgment of the President refers to the Employment Tribunal's jurisdiction under Rule 16 (1). (I find that at page 8 paragraph 11 of the judgment itself.) The applicant is concerned that the omission of reference to Rule 15 (6) might lead to difficulties in any argument which might be advanced in reliance on Rule 15 (6).
5. My view - reading the papers as a whole, including the arguments before Mrs Hill and the issues raised in the notice of appeal - is they plainly include reference to Rule 15 (6) and arguments on it. As it seems to me, the President would not have been excluding argument on Rule 15 (6) without saying so expressly and giving reasons for doing so. He does not say so expressly. The judgment simply omits reference to Rule 15 (6) and it follows from that that he does not give any reasons for precluding the applicant from relying on Rule 15 (6). As it seems to me, on the material I have, it will be open to the applicant to argue for restricted reporting orders in the context of Rule 15 (6) unless and until the Employment Appeal Tribunal comes to a different conclusion. If it were to do so then that matter would be available for consideration, at any rate as a possible ground of appeal.
6. As to the restrictive reporting order in that case, as I read the way in which the situation has developed, Judge Wilkie on 10 August ordered that nothing relevant to these proceedings shall be published which might reveal the name, address or otherwise lead to the identification of the party "K" named in the originating application, and further ordered that the restrictive reporting order should continue until the beginning of the adjourned hearing which was then due to take place on 10 October. In the end that hearing took place on 10 October when the President, Mr Justice Lindsay, ordered that the application - there are lots of references to applications and applicants, but there is no avoiding it - for an extension to the restricted reporting order made by Judge Wilkie should be granted. So the restricted reporting order made by him was extended over the conclusion of the appeal at the Employment Appeal Tribunal.
7. There is some bother by the use of the word "over" in the context of the order. As I read it, that means that the order would extend to the end of the hearing by the Employment Appeal Tribunal at least. The applicant is concerned that her conduct of these proceedings will be inhibited unless she receives the benefit of an order which, in effect, acts in perpetuity. It may be - I simply do not know - that the word "over" was intended to cover that eventuality. But if not, as it seems to me, the issue will have to be examined at the conclusion of the appeal, when the Employment Appeal Tribunal will come to its own decision. If, at that stage, it decides that a restrictive reporting order should not continue then it will be open to the applicant to seek permission to appeal, and also to ask for a stay of any order lifting the restrictions on reporting.
8. As it is, on the basis of the information currently before me, this second application for permission to appeal is inappropriate.
9. I hope that what I have said will be of some help to the applicant by way of clarifying my understanding of the decisions. I shall order that a copy of the transcript of the judgment - not the hearing as a whole but this judgment - should be made available to the applicant at public expense. I shall then direct the applicant that a copy of this judgment should be sent to the Employment Appeal Tribunals which are considering the two applications. Could you do that? We will get the judgment perfected in the next couple of days. I think in relation to Judge Serota you will provide it for Judge Serota or whoever is hearing the appeal on 13 November as soon as you can. As to the order of Mr Justice Lindsay, where there is time, perhaps you could supply that within 21 days of receipt of the judgment.
10. THE APPLICANT: Yes, I will.