Appeal No.	 EAT/891/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
(AS IN CHAMBERS)

MR C TOWLER	APPELLANT

HENRY COOKE LUMSDEN PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised 

	APPEARANCES

For the Appellant	The Appellant 
in person	
For the Respondent	MR ADAM SOLOMAN
(of Counsel)
Instructed by:
Messrs Dibb Lupton Alsop
Solicitors
125 London Wall
London EC2Y 5AE	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1	This is the appeal of Mr C Towler in the matter Towler -v- Henry Cooke Lumsden PLC.  There was a preliminary hearing in relation to Mr Towler’s appeal on 1 March of this year, when the matter came before the Employment Appeal Tribunal sitting under His Honour Judge Clark.  On that occasion, Mr Towler had the assistance of Counsel under the ELAAS scheme and, in the course of the discussions that then took place, Mr Towler, with Mr Weisselberg’s assistance, was able to amend the erstwhile Notice of Appeal which was, so to speak, homemade into a shorter and more specific instrument and there therefore emerged an amended Notice of Appeal.  Not all the grounds in it were permitted to go forward to a full hearing, but the grounds identified as 1, 2, 3 and 5 were permitted to go to a full hearing.  In that sense the matter was concentrated and refined.  

2	There had, previous to that preliminary hearing on 1 March, been no request on Mr Towler’s part for the Chairman’s Notes of Evidence and there was none made at the hearing on 1 March either.  Since then, some Chairman’s comments were received on 27 March and an affidavit on the part of Henry Cooke Lumsden, an affidavit of Mr N Robinson, was sworn on 10 May.  Thus to some extent the picture has changed since the preliminary hearing, but not substantially changed.  Then, fairly recently, Mr Towler, for the first time and in person, made an application for Chairman’s Notes.  A worrying feature of the application is that it had not been made before, notwithstanding, as I mentioned, that Counsel was present at the preliminary hearing, and it has to be viewed in the light of the substantive hearing being due to take place very shortly, on 11 December.  

3	Mr Soloman, on behalf of Henry Cooke, has drawn my attention to Webb -v- Anglian Water Authority where Mr Justice Browne-Wilkinson, as he then was, drew attention to the relatively limited areas in which it is appropriate for Chairman’s Notes to be sought;  but there is, as it seems to me, one area in particular here where it would not be inappropriate, indeed, would be appropriate, to invite the Chairman to provide notes,  If I thought that the subject was likely to lead to prolonged notes, such as to jeopardise the hearing on 11 December, I would have been disinclined to ask the Chairman for such notes, but, as it seems to me, if one limits the topic, one can have notes which should be material and needed and yet which are unlikely to delay the hearing.  The particular topic to which I refer emerges out of paragraph 18 of the Tribunal’s extended reasons.  What the Tribunal there says is 
“18  The Tribunal is therefore satisfied that the reason for the applicant’s dismissal was that he permitted a situation to arise in which clients of the respondent lost in the region of £500,000 when he should have ensured that those clients were in a financial position to stand such losses and further to have ensured that the respondents themselves would not be at risk in respect of such losses.  The Tribunal has to have regard to the amount of money involved and the position of the respondents had they continued to employ the applicant after such a disastrous event.”

4	Now it cannot be denied but that there were references in some papers before the Tribunal to losses said to be in the region of £500,000 but I am far from satisfied that such references as I have seen could be regarded as evidence of loss in the region of £500,000 as opposed to assertion or argument that that was the case.  Mr Tower is emphatic that the figure of £500,000, although he has to accept that it is mentioned in some papers to which attention has been drawn, was actually never mentioned further in the whole of the case, and that no evidence was given as to that subject. That, as it seems to me, is an important subject because plainly, in paragraph 18, great importance was attached to it by the Tribunal.  

5	Accordingly, I shall ask the Chairman to supply notes, by reference to paragraph 18, asking what evidence was received by the Tribunal as to quantification of the losses there referred to at £500,000, and, secondly, how, if at all, such losses, so quantified, were in the evidence attributed to acts or omissions of Mr Towler: those are relatively limited subjects on which it should be possible to provide Chairman’s Notes without jeopardising the hearing of 11 December and I shall so order.