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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Metroline Travel Ltd v Cowan [1993] UKEAT 249_91_1507 (15 July 1993) URL: http://www.bailii.org/uk/cases/UKEAT/1993/249_91_1507.html Cite as: [1993] UKEAT 249_91_1507 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE KNOX
(IN CHAMBERS)
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant
For the Respondents
MR JUSTICE KNOX: There are two things that will not come as much surprise to you, obviously I, and any other Judge that you will find in the Employment Appeal Tribunal, is acquainted with Mr Springer because he is a member of this Tribunal. I think that you are just going to have to live with that frankly, because I doubt if there is a Judge who sits in the Employment Appeal Tribunal who does not know Mr Springer so there is nothing we can do about that. The other thing, which I think is irrelevant but just for safety sake I mention it, as a Chancery Division Judge I tried a case in which there was a dispute between various pensioners of London Transport including the bus employees and London Regional Transport itself, earlier this year. It has nothing to do with this case but I am mentioning that I have been involved in litigation between the pensioners and London Transport.
There is obviously an issue in the appeal about Mr Springer's position in relation to the hearing of this appeal and that has got to be tried. The question really is, how much material is relevant and necessary for that to be properly tried. There is quite a lot of material here, I am thinking particularly of the affidavit of Mr Hughes which has a lot of exhibits to it. I do not think that there is any difficulty about the affidavit itself, I think the problem is, whether we need all this documentation with regard to the details of it. I can quite see that it is needed to establish that there was litigation between Mr Springer on the one hand and London Transport on the other, in an Industrial Tribunal that it was settled on such and such terms on such and such a date.
I doubt whether it is very much of significance as to what exactly the bone of contention in those proceedings was. As I understand it, it is just the possibility of bias that is the subject matter of the complaint and it is not suggested, that there was anything in issue in the earlier proceedings between Mr Springer and London Transport that has any direct impact on the issues in this appeal, but if you think there is, obviously I will listen to you. However, at present I suspect that it would probably be enough if you had page 41 in my bundle, which is the affidavit of Mr Hughes and that exhibit - which is actually exhibit 5 - which sets out the terms on which those proceedings were settled. If you have got that that tells you, a) that there were proceedings; b) that they settled and c) on what terms.
I am not sure that you need anything much more than that but I am anxious to keep what is obviously, essentially a fairly confidential matter on both sides, to the minimum that is legitimately required. Obviously anything that is legitimately required goes in and that is the first priority but there is not much point in including things that are not necessary.
Do either of you have any views about that?
My only view on it sir, is that appears that Mr Springer was at one stage dismissed under the long-term sickness procedure which directly co-relates with Mr Cowan who was also dismissed on ......
Yes I see that. Now where do we get that? Yes, I follow that, obviously there is a case for putting in JBH1 as well as 5 which is at page 41. Anything else you want to bring?
Not for now ..
I am obviously very anxious that we should not shut out anything that ought to be there. On the other hand equally I am anxious we do not put in a lot of things that are not needed.
Sir.
Yes.
I think we both felt it might be helpful to have a very short, I am not sure where the information will come from but it will be helpful to know what Mr Springer's position was with the London Transport Executive between 1978 and 1985. For the moment we do not know what his position was.
I should think the only people who would be in a position to give evidence about that would be London Transport.
I understand that the information that is in the Affidavit of Mr Hume is all the information they have. If that further information cannot be obtained then we will have to ...
What does he say about it. He does not go beyond JDH6 which does not give much away. It looks as though - that's dated January 1985. Did he leave the employment at that point? I have not sorted this one out. When did he leave London Transport's employment?
Sir, on page 29 of the Affidavit at paragraph 11 Mr Springer was dismissed in 1985 and that is as much as Mr Hume can tell from the employment record.
So there was no employment post 1985. What you want to know is what he was employed as before '85.
Yes. As far as I understand we know that he was a driver operator prior to the proceedings which I think were in 1978. He was then re-instated and it is unclear what he was doing following his reinstatement. Obviously if that information cannot be obtained then it cannot be obtained, but it may be.
Either of you are entitled to ask Mr Springer. If you want to have his evidence you are perfectly entitled to do so. I do not think there would be any bar in asking him if he would be good enough to state on affidavit for the benefit of both parties what his occupation was between the date when the proceedings settled in September 1978 this Order is dated and 1985 when he seems to have left the service.
Sir that would be a course of action I would prefer - I would not relish the prospect of dragging Mr Springer along to give evidence.
No. I am not suggesting that he should be asked to come and given evidence because that would be a hopeless way of sorting out any difficulties about the procedural aspect of the matter. It must be decided on the basis of what Mr Springer's past (if I can use that expression without intending to be derogatory) was, rather than on anything Mr Springer did. It is not a case as I understand it of either side saying that there was active bias in the conduct of the proceedings. What is being said (so far as Mr Springer is concerned) is that he was not in a sufficiently detached position for it to be safe for him to sit on the Tribunal and obviously one does not want to interrogate him about the conduct of the proceedings. There is no question of that. But I would have thought that it would be perfectly in order for him to be asked to give a short statement as to what his occupation was when he was with London Transport between the date of the settling of the proceedings and the date when he left. I think a convenient way would be if this Tribunal wrote to Mr Springer asking him to supply a statement to that effect which will be forwarded to both sides. I do not think there will be any problem about that.
Can it be agreed then that exhibits 1 and 5 to Mr Hume's Affidavit and the Affidavit itself of course, go into the bundle but that the other exhibits are not needed and that this Tribunal will get in touch with Mr Springer on the lines that I have mentioned?
Anything else?
In the bundle in front of us today are included Notes of Evidence which have been supplied by the Respondents, I am not clear whether it is intended they should go in the bundle in front of the Appeal Tribunal.
The Chairman's Notes of Evidence ...
Not the Chairman's Notices of Evidence. No I agree that those are relevant given the grounds of appeal which are raised but there are also attached to the sworn Affidavit of Mr Wagstaff and Mr Morgan, their Notes of Evidence given at proceedings which are in fact not as full as the Chairman's Notes and I do not think they raise anything new.
It is not the practice to get more than one set of Notes and one could spend an awful lot of time in checking one against the other. I confess I have not done that in detail. Is there any point in having all three?
...intending to rely upon my notes or Mr Morgan's anyway. Those Affidavits were prepared before the Chairman.
We will exclude all Notes of Evidence other than the Chairman's Notes of Evidence.
Thank you.
That should reduce it a good deal.
On behalf of my client, he did ask me to ask this Tribunal for an early hearing date. He obviously has been waiting a long time for his money. He is actually still unemployed and his Doctor's advice is that the sooner he gets this behind him the better. It is something which is weighing on his mind and not helping him at the moment.
Yes. I will do what I can. I am not in a position to give firm promises about date but I will have a word.
Anything else.
Thank you very much.
