Mutekede v. Mencap & Ors [2001] UKEAT 0898_01_2311 (23 November 2001)

JUDGMENT PRELIMINARY HEARING © Copyright 2001 APPEARANCES For the Appellant MR T OKUNOWO (Trainee Solicitor) Messrs Collinson & Co Solicitors 1-3 Hildreth Street Balham London SW12 9RQ JUDGE D PUGSLEY In this case, the Applicant attended at an Employment Tribunal where she was represented by a friend. During the course of that hearing, which we understand to be a preliminary hearing, a tape was produced by the Respondent and as a result of that the friend who appeared for her, a Miss Nuamah, came back at about 2:30 and confirmed that following discussion during the lunch adjournment that the Applicant now wished to withdraw her claim in its entirety. This is to be taken from the body of the decision. The Tribunal Chairman records the matter in this way "After the short adjournment and at approximately 2.30pm, Miss Nuamah returned before us together with Mr J Copley on behalf of the Respondent to confirm that, following a discussion during that lunch adjournment, the Applicant now wishes to withdraw her claim in its entirety and at this preliminary stage. We allow her to do so. The Originating Application is therefore dismissed upon withdrawal. We order accordingly." That decision was promulgated on 28 th March. On 10 th April, Messrs Collinsons & Co wrote to the Tribunal in this way "The case was listed for a preliminary hearing on 20 th December 2000. During this hearing it transpired there was in existence, a tape which the Respondent intended to use in evidence. As a result of the content of this tape, the Applicant was advised by her lay representatives to withdraw. The Applicant has not had the opportunity of listening to the tape properly. The Applicant claimed she was stressed at the time and she did not agree that she made the statements in the tape and the statements made were not made at the time indicated. We therefore request this case should be re-opened by way of review on the grounds that; a) New evidence has become available since the conclusion of the hearing to which the decision relates and the evidence could not have been reasonably foreseen or known at the time of the hearing. b) The interests of justice require such a review." The Employment Tribunal informed the Respondents of a copy of the letter and asked for their comments and they wrote on the 1 st June "The Applicant withdrew her complaint entirely of her own volition at the Preliminary Hearing at the Stratford Employment Tribunal held on 19 th March 2001. The Applicant withdrew, having been given the opportunity of listening to the tape produced at the Preliminary Hearing in the company of her representatives, for such a period of time as she reasonably required. We recall the Chairman, Mr Cole, was quite clear in his instructions to the Applicant and her representative, namely that they should take as much time as they considered necessary to listen to the tape and to understand and consider the implications raised by it. It should also be noted the transcript of the tape had been previously provided to the Applicant's representatives on 16 th March and such disclosure was made on behalf of Mencap within 24 hours of the tape being given to either Mencap or this firm. Obviously, we are not aware of the advice which the Applicant received from her representatives but she was given every proper opportunity to listen to the tape and did so. The Applicant withdrew of her own volition, and with the advice of her representative, and we see no valid reason why the Applicant's withdrawal should be brought into question now." The Chairman replied to that request on 5 th June. "I acknowledge the receipt of the letter dated 1 st June 2001 from the Respondent's representative, copy herewith for the Applicant's representative. The Chairman, Mr Cole, has instructed me to inform you he refuses the application for a review in the exercise of his power provided for by Rule 11(5) of the Employment Tribunal Rules of Procedure 1993, his reasons are as follows:- i) The application is substantially out of time ii) The Chairman does not take the view that it has a reasonable prospect of success. The Applicant had a representative and was under no pressure. The Respondent's solicitor letter of 1 st June 2001 summarises the position very accurately." In that the letter suggests it was out of time, it is in error because the case was held on 19 th March and the decision promulgated on 28 th March and the letter seeking the review was on 10 th April. In fairness to the Chairman, since the letter of 10 th April asking for the review noted the preliminary hearing as 20 th December, we can understand how he was misled as to dates. Before us Mr Okunowo, who is a trainee solicitor, has said everything possible for the Applicant. However, at the end of the day what troubles us is that if you actually look at the wording of 11(5) "An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success" Now this is a case where the Chairman was integrally connected with what happened. He consulted the Respondent solicitors to see what their view was and he sets out that in his view the Applicant was represented, she was not under pressure and she made the decision to withdraw. What is said by the Applicant's representative is that this is a wholly unreasonable exercise of the discretion and this matter should go before a Tribunal as raising an error of law. We think that is to overstate the position. The Chairman has a discretion, the circumstances were matters within his knowledge. He gave the other side a copy of a chance to give their view and he came to the view that there really was no reasonable prospect of success. The letter, asking for the review, did not out the contention in the skeleton argument the fact that the Applicant now thinks that the tape was produced over a period of time. We've come to the view that we really must dismiss this appeal because we cannot see there is a triable issue that is reasonably arguable in all the circumstances of this case in saying the Chairman exercised his discretion wrongly. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII