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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Old Leake Primary and Nursery School v. Kirk [2002] UKEAT 0764_01_1804 (18 April 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0764_01_1804.html Cite as: [2002] UKEAT 764_1_1804, [2002] UKEAT 0764_01_1804

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR J JUPP (Of Counsel) Instructed By: Messrs Thimbleby Fisher Solicitors 45 Silver Street Coningsby Lincolnshire LN4 4SG


 


JUDGE PETER CLARK:

1. This is an interlocutory appeal by the Respondent in the appeal, Mr Kirk against an order of the Registrar dated 11 December 2001, refusing him permission to amend his answer and to add a cross-appeal. Whilst the order is silent on the further application by the Respondent for limited Chairman's Notes of Evidence, that application it seems to me was also implicitly dismissed by the Registrar.
2. The circumstances giving rise to that order are these. Mr Kirk, formerly employed by the Appellant Governors as Head Teacher at Old Leake Primary School, Boston, Lincolnshire, until his dismissal on 3 February 2000, brought a complaint of unfair dismissal and sex discrimination which was heard by a Tribunal sitting at Boston under the chairmanship of Mr J K Macmillan over 6 days in April and May 2001. By a decision with extended reasons promulgated on 10 May 2001 the Tribunal upheld both complaints and ordered the Appellant to pay compensation to the Respondent in the total sum of £242,620.09. Against both the findings of liability and remedy the Governors appealed to the EAT by a Notice lodged on 18 June 2001.
3. It seems that the appeal was permitted to proceed to a full hearing on all grounds of appeal without an ex-parte preliminary hearing. On 12 July 2001 the Respondent lodged a standard form answer simply relying on the reasons given by the Tribunal for their decision and raising no cross-appeal at that stage.
4. Before the Tribunal the Respondent was represented by Mr Christopher Metcalf of counsel. However in June 2001 Mr Metcalf was appointed to the circuit bench and solicitors acting for the Respondent then passed the papers to Mr Jeffrey Jupp. Meanwhile the holding answer was filed.
5. The papers in the case ran to some 6 lever arch files; it was a substantial claim in money terms, as the Tribunal's award indicates; further, it was necessary for arrangements to be made for a conditional fee agreement to cover counsel's fees in the appeal.
6. The Respondent's position was that he intended to cross-appeal only if the appeal was allowed to proceed to a full hearing following a preliminary hearing, it being assumed by Mr Jupp that such a hearing would inevitably take place. In fact, as I have observed, there was no preliminary hearing because the appeal was permitted to proceed to a full hearing under the experimental fast sift procedure. That procedure is designed to avoid what are thought to be unnecessary preliminary hearings.
7. In these circumstances it was not until 17 September 2001 that application was made on behalf of the Respondent in writing to amend his answer, to add a cross-appeal and to obtain a direction for certain of the Chairman's Notes of Evidence. That application was opposed by the Appellant's representative, Mr Rees, by a letter dated 16 October 2001. Having considered both sides' written representations, the Registrar dismissed the application.
8. At this appeal hearing, Mr Jupp appears on behalf of the Respondent. Mr Rees has indicated that he does not intend to appear at the hearing and has not done so. I therefore take into account his written representations which found favour with the Registrar. In determining this appeal I have treated the matter as a rehearing of the application dealt with by the Registrar on paper.
9. Three issues fall to be determined:

(1) Ought the Respondent to be allowed to amend his Answer?

The nature of the amendment is to identify evidence which it is said was before the Tribunal and which supports material findings at paragraph 12 of the Tribunal's reasons which go to the issue of less favourable treatment of the Respondent when compared with the treatment of a female head teacher. That finding is specifically challenged at paragraph 7 B of the Notice of Appeal. The evidence given by Mr Gresham and DC Brennan, called on behalf of the Appellant below, is said to provide the evidential basis for those findings.

(2) Ought the Respondent to be allowed to add a cross-appeal out of time?

The Notice of Appeal, at paragraph 7 E, contends that at paragraph 36 of their reasons the Tribunal was wrong to proceed on the basis that after the first £30,000 of their award for loss of earnings, the balance would be taxable in the Respondent's hands. It is conceded in the Notice that this point was not taken below and, it follows, an issue arises as to whether it may now be taken for the first time on appeal, see Jones v. Burdett Coutts School [1998] IRLR 521.

By the proposed cross-appeal the Respondent wishes to take the point that in grossing up the award for tax, the Tribunal was wrong to limit the incidence of tax to the basic rate, 23 percent; it ought to have allowed for tax in part at the higher rate of 40 percent. Mr Jupp accepts that that point was not taken below.

(3) Ought the Respondent to be prevented from (a) amending his answer and (b) adding a cross-appeal out of time, by reason of the delay in making the application, some 2 months? As to the question of delay, I have considered whether any prejudice lies to the Appellant in allowing the proposed amendments. I cannot see that there is. Nor is any reason raised by Mr Rees in his written submission; it is merely asserted. Conversely, the Respondent will be prevented from raising matters which, for the reasons which follow, I consider ought to be before the EAT at the full hearing. In short I accept the reasons for delay advanced by Mr Jupp.

10. As to the merits of the proposed amendments:

(a) It will normally be for the Appellant who raises a plea that there is no evidence to support a particular finding by the Tribunal, as appears from paragraph 7 B of the Notice of Appeal, to vigorously pursue an application for Chairman's Notes of Evidence. See Piggott Brothers v. Jackson [1992] ICR 85, 92F (per Sir John Donaldson MR). In this case Mr Jupp tells me that there was an application for the whole of the Chairman's Notes by the Appellant, which application was refused. In all the circumstances, bearing in mind that this appeal was allowed to proceed without the screening of a preliminary hearing, it seems to me desirable that this gap is filled, first by the Respondent's proposed amendment to the answer and secondly by allowing limited Chairman's Notes of Evidence going to the findings at paragraph 12 of the Tribunal's reasons.

(b) If the question as to whether the Tribunal correctly approached the incidence of taxation in relation to the award of compensation for sex discrimination can properly be raised by the Appellant at the full hearing, and I reserve that question to the full EAT which hears the appeal, then it seems to me that it ought to be open to the Respondent to argue that the Tribunal fell into error in the way described in the proposed cross-appeal. At this stage I merely have to decide whether he should be allowed to raise that cross-appeal. I am satisfied that he should, subject to a direction at the full hearing as to whether or not he will be permitted to pursue it, bearing in mind, as with his opponent's point, it was not taken below.

11. It follows that I shall allow this interlocutory appeal; grant permission to the Respondent to amend his answer and add a cross-appeal in terms of the draft lodged with his application dated 17 September 2001 and I shall further direct that the learned chairman be requested to produce his notes of the oral evidence given by Mr Gresham and DC Brennan. Any witness statement produced by those witnesses at the hearing should also be made available in the appeal bundle.