Clarke v Abertawe Bro Morgannwg University Health Board: EAT 23 Jan 2019

Practice and Procedure – The Tribunal had lost its notes of an earlier preliminary hearing at which an application to adduce expert medical evidence was refused. The Claimant applied for reconsideration. At a directions hearing, the Tribunal directed the parties to disclose their contemporaneous notes of the earlier hearing. The Tribunal also stated that, ‘If on consideration of those notes it is apparent that my recollection of the Claimant’s own evidence, her cross-examination and the respondent’s witnesses’ answers is materially incorrect then I would consider that to amount to a material fact warranting further consideration of this issue.’ The Claimant was concerned that the Tribunal would use the parties’ notes to ‘backfill’ its own conclusions. The Claimant applied to the Tribunal to provide, from memory, a summary of its material recollection of the earlier hearing before seeing the parties’ notes of evidence (‘the application’). The Tribunal refused the application, noting that the parties had consented to the provision of their notes and that there had not been any material change in circumstances such as to warrant varying its order. The Claimant appealed against the Tribunal’s decision to refuse the application on the grounds that there had been a material change in circumstances – namely the Tribunal’s proposed course of action in relation to the notes – and that the proposed course was unfair and would be perceived as such.
Held: The appeal was dismissed. The Tribunal’s proposed course of action did not amount to a material change in circumstances. The parties were aware at the time of the order to produce their notes that the Tribunal’s notes were unavailable and that the Judge would be reading the parties’ notes. The possibility that the Judge would, having seen those notes, compare them against his own recollection was evident from the outset. The Tribunal’s proposal was not unfair. In the unusual circumstances of this case, whereby the Tribunal had lost its notes, there was nothing to suggest that by referring to the parties’ notes, the Tribunal would be doing anything other than refreshing its memory. It is unlikely that the Tribunal intended to rely upon the notes in order to ‘backfill’ its conclusions as alleged, or to come up with material not recorded elsewhere, and there was nothing to suggest that that was its intention. Furthermore, if the Tribunal did seek to rely on matters wholly unsupported by any evidence, then that would probably give rise to a separate ground of appeal in any event.


[2019] UKEAT 0185 – 18 – 2301




England and Wales


Updated: 05 July 2022; Ref: scu.637637