Practice and Procedure – Case Management
The Claimant presented three claims containing multiple complaints under the Equality Act 2010, of alleged treatment by the Respondents during the course of her employment. In the run-up the Full Merits Hearing, she dis-instructed her solicitors and subsequently retained counsel to represent her at that Hearing on a direct access basis. She made applications to postpone the Hearing, at a Preliminary Hearing twelve days before the first day, and on what was to have been the first day of that Hearing. Both of those applications were refused.
During the course of the Hearing itself, following the Claimant and her other witness having given evidence, and when he was in the course of cross-examining the Respondents’ second witness, the Claimant’s counsel applied for an adjournment of around four or five days, on the basis that he needed more time to prepare. He was granted a shorter adjournment, on the basis that he should complete cross-examination of the current witness first. He then ceased to be instructed, and the Claimant was allowed a short adjournment before taking over cross-examination in person. The next day, during the course of her ongoing cross-examination of the current witness, the Claimant applied for an adjournment of four or five days with a view to reinstructing her counsel and giving him further time to prepare to cross-examine the Respondents’ remaining witnesses. That application was refused.
The principal basis of the appeal was that the Claimant had been deprived of a fair trial, having regard to the decisions on those two particular postponement applications made during the course of the first week of the Hearing.
Held:
(1) Time for appealing a case management decision in its own right ordinarily runs from the date when the written record of that decision is sent to the parties, not the earlier date when it is orally given. Okoro and Anor v Taylor Woodrow Construction Limited and Ors [2010] UKEAT/0318/10 considered.
(2) Accordingly, if such a decision is taken during the course of a Full Merits Hearing, when time runs from, to appeal it in its own right, will depend on whether the Tribunal sends the parties any written record of that decision before sending out its substantive written decision, or whether any such record only forms part of the substantive written decision.
(3) An appeal which contends that a party has not had a fair trial, may include a contention that an individual case management decision taken during the course of the Full Merits Hearing, has contributed towards the overall unfairness of that Hearing, even where there has not been a separate and timely appeal against that individual case management decision in its own right. Shodeke v Hill [2004] UKEAT/0394/00 considered.
(4) However, the appeal in the present case, so far as it related to procedural matters, was, in substance, an appeal against the Tribunal’s decisions on the two adjournment applications in their own right, as no other aspect of the conduct of the trial was alleged by the Grounds of Appeal to have also contributed to its unfairness;
(5) The Tribunal had provided a written record of its decisions on the adjournment applications, some months before it issued its reserved decision on the substance of the complaints considered at trial. The Claimant had previously sought to appeal those decisions within 42 days of the sending of that record; but that appeal had been dismissed. The further attempt to appeal those decisions, by way of an appeal against the later substantive decision, was out of time and an abuse of process.
(6) In any event those decisions were taken in proper exercise of the Tribunal’s discretion. No relevant factors were not considered, or irrelevant factors considered, and they were not perverse. They did not deprive the Claimant of the right to a fair trial.
(7) Challenges to the adequacy or cogency of two specific substantive findings made by the Tribunal also failed.
(8) The appeal as a whole was therefore dismissed.
Citations:
[2019] UKEAT 0292 – 18 – 1112
Links:
Bailii
Jurisdiction:
England and Wales
Employment
Updated: 19 October 2022; Ref: scu.646864
