Weston (t/a Mildenhire Car Rentals) v Smeltzer [1995] UKEAT 1015_94_0703 (7 March 1995)

JUDGMENT PRELIMINARY HEARING Revised APPEARANCES For the Appellant IN PERSON MR JUSTICE BUCKLEY : This slightly unusual situation comes before us by way of an appeal by Mr Weston. There was an application to the Industrial Tribunal by an employee of his arising from an allegation of unfair dismissal. In the course of the procedures leading up to that Mr Weston's Appearance was struck out because he had not complied with an Order of the Tribunal on discovery. The Order striking him out is before us and is dated 9 September 1994. Mr Weston wrote on 14 September to the Tribunal at Reading asking them, in effect, to "let him in again" because he had changed his address and that is why he had not responded. The Tribunal replied by a letter from the Regional Secretary of the Tribunals on the direction of the Chairman, to the effect that Mr Weston only had himself to blame because in short, he was responsible for any mix-up there was over addresses. The upshot was that the matter then went to a hearing which was inevitably one-sided and the Tribunal having heard the Applicant's evidence found unfair dismissal and appear to have made an award of some £7,000. Mr Weston has sought to appeal to us producing Affidavits showing further, and what he describes as, fresh evidence which has come to light since the Tribunal's decision and which he alleges throws a different light on the matter. Under the Tribunal Rules it is quite clear that fresh evidence is one of the specific grounds upon which a Tribunal may review its decision. Another, and we are referring to Schedule 1 paragraph 11 of the 1993 Industrial Tribunals Regulations 11(1)(e), states: "the interests of justice require such a review". We propose, in all the circumstances, to adjourn that part of Mr Weston's appeal which relates to the Chairman's decision not to re-open the striking out; that arose out of the exchange of letters we have mentioned, 14 and 22 September. We propose to adjourn that part of his appeal. It seems to us that both aspects of this matter, that is the merits and the striking out, ought to be looked at in the round in the interests of justice under 11(1)(e). It may or may not alter the Chairman's decision but we think that the matter should properly be considered. There has been no application for a review of the Decision of the Tribunal and that is a step which Mr Weston must take before he can appeal the actual decision and unless he can appeal or re-open that decision in some way obviously he is going to be bound by it. We cannot re-open the decision because he has not, as yet, applied for a review. We propose to adjourn the part of the appeal to which we have referred. If Mr Weston wishes to pursue this matter he should apply for a review. He should send the Affidavits and the fresh evidence, to the Tribunal together with his reasons for suggesting that he could not have got those at an earlier date and any other information he wishes to bring to the Tribunal's attention; and we can only urge the Tribunal to look at the matter in the round and to see whether the interests of justice do require now that the matter should be reviewed by them and Mr Weston have the opportunity of being heard together with his witnesses. When a decision on that has been made Mr Weston will then be in a position to appeal if necessary. If the decision of the Tribunal is to review the matter and hear it, hopefully an appeal will no longer be necessary and Mr Weston will be either satisfied by or prepared to accept the decision of the Tribunal on the merits. Until that has happened we do not feel that there is anything that this Appeal Tribunal can do. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII