Appeal No. UKEAT/0116/11/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		   At the Tribunal
		   On 1 September 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

MRS S B READMAN	APPELLANT

DEVON PRIMARY CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - ALL PARTIES

	APPEARANCES

For the Appellant	MR B COOPER
(of Counsel)
Free Representation Unit
Old Square Chambers
10-11 Bedford Row
London
WC1R 4BU	
For the Respondent
	MISS E CUNNINGHAM
(of Counsel)
Instructed by:
Messrs Bevan Brittan LLP
Kings Orchard
1 Queen Street
Bristol
BS2 0HQ

SUMMARY
PRACTICE AND PROCEDURE – Amendment

Decision on hearing under rule 3 (10) – Observations on approach to grant of leave to amend Notice of Appeal at hearings under that rule.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	By a Judgment sent to the parties on 22 September 2009 an Employment Tribunal sitting at Taunton, chaired by Employment Judge Roper, dismissed the Appellant’s claim for a redundancy payment.  There was no issue that her existing role was redundant, but it was held that she had unreasonably declined an offer of suitable alternative employment.  Her original Notice of Appeal - drafted, I think, by her husband, who has until recently appeared as her representative - included allegations of bias, and the procedure under paragraph 11 of the Practice Direction was implemented.  This meant that the Respondent’s solicitor had to put in an affidavit about how matters had proceeded in the Tribunal.  Once the procedure had been gone through, the matter came back before HHJ Peter Clark on 7 May 2010, and the Notice of Appeal was rejected under rule 3 (7) of the Employment Appeal Tribunal Rules 1993 (as amended).  The Appellant took advantage of her right under rule 3 (8) to lodge a fresh Notice of Appeal, which advanced different allegations of bias, and the procedure under paragraph 11 had to be gone through again, involving the Trust’s solicitor having to prepare a further affidavit.  The matter then came back before Keith J, who rejected the fresh Notice of Appeal as well.

2.	The Appellant then sought an oral hearing under rule 3 (10), which came before me on 23 March 2011.  I dismissed all the pleaded grounds of appeal, holding, as Keith J had done, that the allegations of bias made in the fresh Notice of Appeal were plainly ill‑founded; but I allowed the appeal to proceed to a full hearing, with an estimate of two hours, on the basis of grounds not pleaded in the Notice of Appeal under rule 3 (8) but advanced by Mr Ben Cooper of counsel, who appeared for the Appellant under the ELAAS scheme.  Although the grounds in question had not, as I said, been pleaded in the fresh Notice of Appeal, a broad ground to roughly the same effect - though, it goes without saying, much less clearly and precisely pleaded - had been included in the original Notice of Appeal that had been rejected by Judge Clark.  I noted that allowing the appeal to proceed on that basis involved giving the Appellant permission to amend the Notice of Appeal in circumstances where the Respondent had had no opportunity to object, and that it thus had the right to apply to have the amendment set aside.  I also said, however, that it was questionable whether it made sense for any such application to be made in advance of the full hearing that I had directed.

3.	The Respondent has indeed applied by letter dated 6 April for the permission to amend to be set aside, and has asked for a hearing to determine that point in advance of the full hearing.  I caused the Registrar to write on 14 April enclosing the transcript of my judgment at the rule 3 (10) hearing and encouraging the Respondent to consider in the light of the remarks which I had there made whether a separate hearing on the amendment issue really made sense; but it persisted in its application.  Although I could perhaps have refused to allow a separate hearing, I did not do so; and the matter accordingly comes before me for determination today.  I should say that I had sought to have it come on before the summer vacation, but for reasons of which I am unaware that did not prove possible.  Mr Cooper again appears for the Appellant, again acting on a pro bono basis; Miss Elizabeth Cunningham of counsel appears for the Respondent.

4.	The principles governing permission to amend a notice of appeal in this Tribunal are helpfully set out in the judgment of HHJ Serota QC in the well‑known case of Khudados v Leggate and Ors [2005] ICR 1013 at paragraph 86 (see pages 102-3).  I would not wish in any way to question Judge Serota’s helpful exposition.  We are, however, concerned here with a particular situation that arises not infrequently but which did not fall for specific consideration on the facts of Khudados.  Appellants, and in particular unrepresented appellants, very commonly submit notices of appeal that disclose no reasonable ground of appeal.  In such a case the notice of appeal is rejected under rule 3 (7).  As occurred in this case, the appellant then has the opportunity to submit within 28 days thereafter a fresh notice of appeal, which is considered in the same way.  (I pause to observe, though it is of only marginal significance, that in practice what rule 3 (8) gives is an absolute right to amend the notice of appeal - hopefully, though the hope is often falsified, in order to repair the defects that have led to the original notice of appeal being rejected.  It is arguable whether rule 3 (8) is really a justifiable rule, but it is there, and its origins are lost in the mists of time.)  In any event, whether the rule 3 (8) option has been taken or not, the appellant can require an oral hearing under rule 3 (10).  At that hearing an unrepresented appellant will have the opportunity of representation under the ELAAS scheme, which most (though by no means all) avail themselves of.  Sometimes the representative will be able to persuade the judge that the originally pleaded point is more arguable than it appeared to be on the paper sift.  Perhaps more often, he or she will spot a new point, or at least one not properly articulated in the notice of appeal, that has a reasonable prospect of success even though the pleaded grounds do not.  Less often, the judge himself or herself may identify and suggest a point that has not been previously taken or properly taken.  Points arising in that way will of course require the grant of permission to amend.

5.	In my view, it will generally be in the interests of justice that applications for permission to amend at a rule 3 (10) hearing, in circumstances such as I have just outlined, should be granted, even if the point is one that has not been pleaded in the original notice of appeal or indeed any replacement under rule 3 (8) - provided always, of course, that the point is reasonably arguable.  The fact is that it will only rarely be through the choice of an appellant whose case come before a judge under rule 3 (10) that he or she has previously been unrepresented: legal aid is of course not available in the employment tribunal (save in the most exceptional circumstances) and many parties - mostly, but not always, claimants - are unrepresented simply because they cannot afford to instruct a lawyer.  Many or most of them do not have the skills to identify an arguable point of law in the reasons of an employment tribunal.  Thus the hearing before this Tribunal is for such appellants the first practical opportunity that they will have had to obtain professional advice on their appeal.  It is for that reason that judges in my experience are generally - and, I believe, rightly - not chary about granting permission to amend, even, as I say, where the amendment raises a point different from that taken in the original notice of appeal.  Allowing an amendment in those circumstances will not impede the efficient working of the tribunal system or cause disruption to listing: on the contrary, it will have emerged from the sift process, whose essential purpose is to identify arguable grounds of appeal and weed out those that are unarguable.  The only real prejudice inherent in the grant of permission to amend in those circumstances will be that the appeal process will get underway later than would otherwise have been the case, since a 3 (10) hearing will inevitably occur some weeks (occasionally, many weeks) after the time that a notice of appeal that did not require amendment would have got through the sift.  It is important to appreciate, however, that during that period the respondent will not normally have had to do anything: it will have been notified that the appeal has been lodged, but there is no requirement to lodge an answer until the appeal has survived the sift process and appropriate directions have been given.  That delay apart, and absent special circumstances, therefore, the only prejudice suffered by the respondent is that an appeal in which ex hypothesi there are reasonable grounds for appeal will proceed against him when otherwise it would not have done; but, as Judge Serota acknowledged in Khudados, that by itself is not a point about which the respondent can legitimately complain (see paragraph 86 (d) at page 1033D).

6.	I should make it plain that these observations are not intended to constitute a departure from the principles enunciated in Khudados; rather, they concern their application in one particular, though not uncommon, kind of situation.  Although it is perhaps not strictly necessary that I should do so, I will comment briefly on how each of the six factors identified under paragraph 86 of the decision in Khudados applies in such a case.  

7.	The first consideration, identified by Judge Serota at heading (a), is whether the appellant has sought permission to amend “as soon as the need for amendment is known.”  That phrase reflects what was then paragraph 2 (6) of the Employment Appeal Tribunal Practice Direction; the wording is now slightly different and uses the phrase “as soon as practicable.”  It follows from my earlier observations that in a situation of the kind under consideration I am of the view that an appellant will indeed have made the application as soon as practicable: the absence of legal advice until he gets to the rule 3 (10) hearing will in ordinary circumstances have made it impracticable to propose the amendment in question.  Ms Cunningham submitted that the right approach in relation to “consideration (a)”, using now the language of the current Practice Direction, was to follow the line of authorities (beginning with Dedman v British Building and Engineering Appliances Ltd [1973] ICR 53) concerned with reasonable practicability in connection with the time limits for bringing a claim of unfair dismissal.  We are not of course here concerned with a statutory provision; nor in any event is Judge Serota proposing an absolute rule, but merely a relevant consideration affecting the exercise of a discretion, so any direct application of the Dedman line of authorities would be inappropriate in any event.  Further, we are concerned not with the initiation of the appeal proceedings, but rather with an application in the course of an appeal that has already been lodged.  But I would also say that I see no reason in this particular context to adopt the approach that it was practicable for an appellant to propose an amendment simply on the basis that if he or she had had access to legal advice, they would have been advised to plead the point in question in the original notice of appeal.

8.	Turning to Judge Serota’s point (b), which borrows the observation of Mummery LJ from United Arab Emirates v Abdelghafar [1995] ICR 65 that this Tribunal is entitled to a “full, honest and acceptable explanation” for any delay or failure, in the paradigm case that I have discussed the only explanation will be that the appellant, without the benefit of legal advice, had not appreciated that the point required to be pleaded in the way now advanced.  I see no reason why that should not be regarded as acceptable in this particular context.  The fact that it would not be acceptable in the different context of an application for an extension of time for appealing does not seem to me to matter.

9.	Judge Serota’s point (c) relates to the delay to which the notice of appeal is likely to give rise: I have already said what I need about that.  The same applies to his point (d), which concerns the prejudice to the Respondent by allowing a late amendment.  

10.	As regards Judge Serota’s point (e), namely that it would normally be appropriate to require the Appellant to demonstrate that the proposed amendment raises a point of law with a reasonable prospect of success, that will be inherent in the exercise: the Judge at the rule 3 (10) hearing will not grant permission to amend unless he is satisfied that the point is arguable.  

11.	As for Judge Serota’s point (f), which relates to the public interest in ensuring that the EAT’s business is conducted expeditiously, I have already explained why there will be no such prejudice to the public interest in the case of a kind with which I am concerned.

12.	Of course the fact remains that permission to amend given at a rule 3 (10) hearing, where the respondent is by definition not present, will be subject to the respondent’s inherent right to apply to have it set aside, which is why we are here.  But I have to say that in my experience that right is rarely exercised, since respondents mostly take the sensible view that if a judge has considered that there is an arguable point, the best thing is to have all points decided, including if necessary any objection to the grant of permission, at the hearing that the judge has directed rather than risk the cost and delay inherent in having a separate hearing on the application to set aside.

13.	For those reasons I regard the burden as being very much on the Respondent in this case to show me why permission to amend should have been refused and/or in any event should now be revoked.  Miss Cunningham’s points, granted my basic approach, are essentially twofold.  First, she submitted that this was not a standard situation of the kind that I have outlined.  The unusual history, which I briefly summarised at the beginning of this Judgment, involving the paragraph 11 procedure being deployed not only once but twice as a result of grounds alleging bias that were wholly misconceived, meant that the delay in the eventual resolution of the appeal, if the permission to amend were allowed to stand, would be quite exceptional.  It is now about two years from the date of the Tribunal hearing, and if the appeal were to proceed and if, contrary to her submissions, it were to be allowed and result in a rehearing, such a rehearing might not be for the best part of a further year.  It is, she submitted, unacceptable that the Respondent should have to put up with such prolonged uncertainty.  She referred to the concern, pressure and anxiety that she says that the Respondent feels - not least, although not only, because the Appellant says (though this is not necessarily accepted) that the claim may have implications for her contractual redundancy and pension rights, which involve much larger sums, than her statutory redundancy pay (which would appear to be under £12,000).  It was also relevant, she submitted, that the Respondent had had already to incur the costs of the two affidavits from its solicitor to deal with the bias points, which have already been declared to be hopeless.  Secondly, she submitted that the point sought to be raised by the amendment had no reasonable prospect of success.  

14.	As to the first point, I do see real force in Miss Cunningham’s submissions: it is indeed very regrettable that matters have taken as long as they have.  Fortunately it is very exceptional that delays of the kind in question should occur, but when they do I can well understand the frustration and dismay caused to a respondent.  However, in the end I am not persuaded that that is a sufficient reason in the particular circumstances of this case to revoke the permission to amend that I have given.  Although I have acknowledged how undesirable it is that the claim should still be hanging over the Respondent so long after the relevant events, mainly because of the Appellant having chased after bad points instead of pursuing a good point, nevertheless the nature of the claim is not such that it could or should cause real concern or distress to any individuals within the Respondent.  This is not an unfair dismissal or sex discrimination claim, where there is any risk of the conduct of any individual being impugned: all that is in issue is the reasonableness of the Appellant’s refusal of a job offer, which the Tribunal has already held was suitable.  If the appeal is allowed to proceed and if it is successful, the outcome (although I would not wish formally to bind the Tribunal at the full hearing) is likely to be a remittal to the Tribunal on a single issue, namely, as I have said, the reasonableness of the Appellant’s refusal.  That might indeed not require any evidence to be called by the Respondent; but even if it did it would not require the giving of any evidence of a kind that would be likely to cause anxiety or stress for the witnesses concerned.  I can understand too why the uncertainty about a possible financial contingency should cause some concern, but whatever the precise sums they cannot be enormous, and uncertainty of this kind is hardly a unique predicament for a corporate body or a public authority.

15.	For those reasons I cannot regard the long delays in this case, undesirable as they are, as being sufficient to outweigh the Appellant’s right to have an arguable point of law properly determined by this Tribunal.  I would add one further point.  As I have already mentioned, in the Appellant’s first Notice of Appeal a ground was pleaded that at least broadly corresponds to the grounds now articulated in the amended Notice of Appeal.  Judge Peter Clark rejected that ground under rule 3 (7), but it is implicit in my decision in March - subject to the points I am about to consider - that he should not have done so, and that if the Appellant had pursued the matter to a rule 3 (10) hearing at that stage instead of going down the blind alley of pursuing further bias allegations under her fresh Notice of Appeal, the point would have been allowed to proceed at that stage.  The significance of this is that not all of the delay since the lodging of the original Notice of Appeal is the result of bad points being taken.

16.	I turn to Miss Cunningham’s other ground - that is, that the point now being taken by the Appellant in the amended Notice of Appeal has no reasonable prospect of success.  I am not convinced that that is the case; and, that being so, I ought to say as little as possible so as to avoid treading on the toes of the Tribunal hearing the full appeal.  The essence of the point now being raised, although I do not purport to summarise it fully, is that at paragraph 25 of the Reasons the Tribunal did not address the reasonableness, from her point of view, of the Appellant’s essential position, clearly stated by her in her evidence, namely that she did not want to go back to hospital work after 20 years as a community nurse; but that the Tribunal instead, in a very briefly reasoned paragraph, held her position to be unreasonable because she had not made certain enquiries about the new job which, Mr Cooper submits, could have had no bearing on her essential objection to it and because, though the findings on this are perhaps implicit rather than explicit, the Tribunal thought that she was more motivated by a desire to emigrate with the benefit of a redundancy payment than to continue her employment in the NHS.  I continue, despite the points ably advanced by Miss Cunningham, to regard it as arguable that the Tribunal’s treatment of this aspect was wrong in law.  I emphasise for her benefit and that of her clients that I mean no more than that.  It should not be assumed that because I have regarded the point as arguable I secretly regard it as right.  I am playing this, as I ought to, by the book.  If this was a point that was within my jurisdiction to decide as a Judge alone, I might, having both the parties here together, have sought their agreement to having the point decided finally, in which case I would have come down one way or the other on what I believe to be an arguable point.  But, under the Rules, if the point is arguable it must be decided by a full Tribunal of a Judge and lay members, so that shortcut is simply not available.

17.	Accordingly, despite Miss Cunningham’s determined submissions to the contrary, I must dismiss the application, and the appeal will proceed to a full hearing in accordance with my original direction.  I am bound to observe that the warnings that I gave, both in the transcript and in the Registrar’s subsequent letter, have turned out to be correct.  The Respondent is now landed with the cost of two hearings instead of one, and some further delay in having the appeal determined.  I accept of course that if Miss Cunningham had been successful, that would not have been the case, but the Respondent took a chance, and unfortunately it has not paid off.  I will however, given the history of this matter, do my best to see that the appeal comes on as soon as it possibly can.