Serco Ltd v Wells (Practice and Procedure) [2016] UKEAT 0330_15

HIS HONOUR JUDGE HAND QC

Introduction

1. This appeal came before me on 17 December 2015 at an expedited Preliminary Hearing with only the Appellant, the Respondent below, who I will call the Respondent from now on, in attendance and making oral submissions through Mr Kibling of counsel appeared. The background to the case was one of urgency and Her Honour Judge Eady QC had ordered the matter to be expedited when directing a Preliminary Hearing. After hearing the oral submissions I concluded that the appeal ought to proceed to a Full Hearing and because a ten-day hearing is due to start on 29 February 2016 I also ordered expedition, which was why the Full Hearing was listed on 7 January. Mr Kibling appeared again for the Respondent and the Respondent to this appeal, who I will call the Claimant from now on, was represented by Mr Blackwood of counsel.

2. The appeal concerns sequential contradictory decisions made by two Employment Judges. On 12 March 2015, at a Case Management Preliminary Hearing heard by telephone, Employment Judge Coles ordered (by paragraph B3 of “Schedule B (Orders and Directions)” that there be a Public Preliminary Hearing on the issue of the length of service of the Respondent (“the Coles Order”) and directed that the hearing take place at Southampton on 7 July 2015 (see pages 219 to 222 of the appeal bundle), although at paragraph B6 he provided that the Orders be “subject to the decision of Regional Employment Judge Parkin in relation to the joint application by the parties for Judicial Mediation.” I understand this to be a direction that the holding of the Public Preliminary Hearing would be subject to whatever happened when Judicial Mediation was considered by REJ Parkin.

The Coles Order

3. In a series of paragraphs in “Schedule A (The issues)” EJ Coles identified the complaints being made to the Employment Tribunal and characterise the main complaint as public interest disclosure detriment and dismissal (see paragraphs A1 and A5); remarked that the claim form was “extensive”[1] (see paragraph A2); discussed the possibility of Judicial Mediation (see paragraphs A3 and A4); identified and describe the dispute as to the effective date of termination (see paragraphs A6 and A7); discussed and decided that there should be a Preliminary Hearing to determine that issue (see paragraphs A8 and A9); ordered that the file be referred to Regional Employment Judge Parkin for him to consider whether Judicial Mediation was appropriate (see paragraph A10).

The Subsequent History

4. Recounting the subsequent history involves this difficulty. Although the Appellant’s solicitors took very full notes of hearings they attended, either by telephone or at the Employment Tribunal, those notes have not been either agreed by counsel for submitted to REJ Parkin for his approval. This potential problem was not spotted by me until during the short adjournment of the hearing on 7 January 2016 by which time there had been considerable reliance placed on the notes by Mr Kibling and, to a lesser extent, by Mr Blackwood. After discussing the matter with counsel it was agreed that I would not place any reliance upon these notes in this Judgment and I do not do so.

5. On 15 April 2015 at a telephone hearing, REJ Parkin ordered the parties to agree a list of issues and lodge a copy with the Employment Tribunal (see page 245 of the appeal bundle). An extensive list of issues was agreed and drawn up. It is dated 15 May 2015 and comprises some 96 separate issues and occupies pages 223 to 236 of the appeal bundle. The Order provided for a further Case Management Preliminary Hearing to be held by telephone on 19 May 2015 to consider offering Judicial Mediation. My understanding is that at that hearing Judicial Mediation was ordered to take place on 17 July 2015 but, as a result of some difficulties with the availability of Mr Kibling, the parties agreed to vacate the Preliminary Hearing due to take place on 7 July 2015 and to bring the Judicial mediation forward to that date. The Judicial Mediation was brought forward to 7 July 2015 but it was unsuccessful. Following that, on 22 July 2015, REJ Parkin directed that the case be listed for a substantive 10 day hearing (see page 250 of the appeal bundle). The Respondent’s solicitors replied giving Mr Kibling’s dates of availability[2] but also asking for the Preliminary Hearing to be listed “in advance of the liability hearing” (see pages 251 and 252 of the appeal bundle).

6. On 4 September 2015 at a Preliminary Hearing REJ Parkin invited the parties to make submissions “whether a Preliminary Hearing solely to determine the claimant’s length of service should be realistic” (see the letter dated 11 September 2015 from the Employment Tribunal to the parties at page 263 of the appeal bundle). The parties made their respective submissions by letters. The Claimant’s letter on the subject was dated 30 September 2015 (see pages 364 to 370) and the Respondent’s letter was dated 2 October 2015 (see pages 271 to 273 of the appeal bundle).

The Parkin Order

7. On 14 October REJ Parkin revoked the Coles Order directing a Preliminary Hearing to determine the Claimant’s length of service. His reasons for doing so are to be found in his Case Management Judgment in paragraphs 1 to 6 of the Reasons (see pages 3 to 5 of the hearing bundle). I do not propose to over burden this Judgment by setting out the text of all those paragraphs but I think his starting point is significant and so I will quote paragraph 1 and first sentence of paragraph 2 in full:

“1. Although much effort and reliance on authorities has been made by the parties in respect of this short matter, there was only the slightest difference in approach between them as to how of [sic] the Tribunal should deal with it. It was accepted that in general the Tribunal should follow the case management approach of an earlier Tribunal. Whereas the respondent contended that the new Tribunal can only vary the previous approach where there is good cause to do so, such as a significant or substantial change in circumstances, the claimant contended that this was seeking to elevate the principle into a Rule or Regulation which removed the tribunal’s wider judicial discretion under Rule 29 (while still acknowledging Tribunal should only vary the previous approach where there was good cause to do so).

2. In reality, the distinction matters little since the Judge would only vary the approach within the previous order made if there were a good cause now to do so. …”

8. This and the rest of his reasoning needs to be dissected with care. REJ Parkin detected “only the slightest difference in approach between” the parties and a general acceptance that “the Tribunal should follow the case management approach of an earlier Tribunal”. He identified the difference as being that whereas the Respondent had “contended that the new Tribunal can only vary the previous approach where there is good cause to do so, such as a significant or substantial change in circumstances”, the Claimant, “whilst still acknowledging the Tribunal should only vary the previous approach where there was good cause to do so”, regarded the Respondent’s suggested approach as too rigid (“seeking to elevate principle into a Rule or Regulation”) with the result that it “removed the tribunal’s wider judicial discretion under Rule 29” but a Judge would not interfere unless “there were a good cause now to do so” (see paragraph 2).

9. REJ Parkin also acknowledged that the Coles Order was not ambiguous and that when making his order EJ Coles had been fully aware that there was a claim of unfair dismissal related to a protected disclosure (see also paragraph 2). One must presume that he mentions those as being factors militating against interference.

10. In paragraph 3, REJ Parkin recorded the fact that the agreed list of issues, which had been lodged in May 2015, identified 96 separate issues “many subdivided under the respective headings “dismissal”, “effective date of termination”, “protected disclosures” and “other issues” ”. The Respondent had argued that “a considerable number of issues were impacted by the outcome of … [the] … Preliminary Hearing” and that “there was no material change in circumstances since … [the Coles Order]”, that the outcome of a Preliminary Hearing “would markedly influence how it prepared its witness statements” and would affect the burden of proof and had accepted that of the 96 issues only 12 of those “definitely fell away if the claimant lacked sufficient continuous service for ordinary unfair dismissal”.

11. Paragraph 4 recorded the Claimant’s argument that “the effluxion of time was in itself a change of circumstances” and the contention that far fewer issues were affected than the Respondent suggested was the case. The Claimant submitted that “The interests of justice were now for all issues to be decided together as soon as possible”.

12. But in the first sentence of paragraph 5 REJ Parkin rejects “the mere passage of time” as a “material change in circumstances” because that “would mean that case management orders could be varied almost as a matter of course simply as more time passed”. He concluded, however, that there had been a “material change” since the Coles Order, namely “the preparation and agreement by the parties of the very significant list of issues, demonstrating completely the inter-relationship between ordinary unfair dismissal and inadmissible reason unfair dismissal claims”. This had been the only progress made in the proceedings (see the second and third sentences of paragraph 5) and such a “substantial list … went far beyond what Judge Coles envisaged at his initial hearing at a time when no final hearing duration was noted” and would not shorten the final hearing because it would determine “Only a very few of those issues” (see the fourth and fifth sentences of paragraph 5). This was clearly an acceptance of the Claimant’s submission (see above at paragraph 11 of this Judgment) that a Preliminary Hearing to determine the Claimant’s length of service would resolve very few of the issues.

13. Nor did it appear to REJ Parkin that the contents of witness statements would need to be different because “differing burdens of proof” might be in play at any hearing which addressed all complaints together although these matters would have to be dealt with by the submissions made on behalf of the parties (see the sixth sentence of paragraph 5). This was a rejection of the Respondent’s submission that unless there was a Preliminary Hearing trial preparation would be more extensive and the hearing more conceptually difficult (see above at paragraph 10 of this Judgment). Moreover preparation for a Preliminary Hearing would divert time and attention from preparation for “the final hearing”, which might require a separate bundle and oral evidence (see the seventh sentence of paragraph 5).

14. Finally, REJ Parkin thought that the issues about the effective date of termination, which were related to the meaning, effect and application of a “PILON clause” were by no means straight forward. Such considerations might involve “the implications of the Supreme Court judgment in Geys v Societe Generale” (see the eighth and final sentence of paragraph 5).

15. The jurisprudential basis of this reasoning is declared in paragraph 6 to be Rules 2 and 29 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013; paragraph 6 reads:

“For the avoidance of doubt, having regard to Rule 29, the Judge concludes that this variation from the original case management order is necessary in the interests of justice in accordance with the overriding objective.”

The Issues on this Appeal

16. It seems to me that REJ Parkin understood perfectly well that he was making a decision involving the relationship between one Judge’s order and another and the question of when a Judge exercising the same jurisdiction at the same level can and/or should interfere with an earlier decision made by a colleague at an equivalent level in the same jurisdiction. I also think it is clear he understood that he did not have an unfettered discretion. In the first sentence of paragraph 2 (quoted immediately above at paragraph 15 of this Judgment) he referred to the need for a “good cause” for variation and his use of the word “now” introduces a temporal comparison between the circumstances prevailing when the previous order was made and the circumstances prevailing when interference is being considered. Moreover, in the first sentence of paragraph 5 REJ Parkin identified his “good cause” as being “a material change in circumstances”.

17. Therefore, looking at his reasoning in paragraphs 1 to 6, it seems to me REJ Parkin regarded it as open to a later Judge to vary an order made by an earlier Judge where there had been a material change in circumstances since the order was made and in the exercise of judicial discretion it would be in the interests of justice and otherwise consistent with the overriding objective to do so. At the hearing of this appeal I had the luxury of hearing clear and concise submissions from two experienced and skilled advocates. For that I am very grateful and I intend no discourtesy to either by not setting out their submissions in full. It is not necessary for me to do so because during the short adjournment on 7 January 2016 counsel reflected on and discussed their respective positions, as exposed and refined by their submissions up to that point, and reached agreement on a number of matters.

18. Mr Kibling’s analysis suggested that before there could be subsequent variation by a Judge of an earlier order made by another Judge exercising the same jurisdiction there had to exist either a material change in the circumstances occurring since the order was made or that there would be rare and exceptional cases where there could be such interference without such a change of which misstatement of the facts when the order had been made would be one example. Mr Blackwood differed slightly; drawing on the approach of the Court of Appeal in the civil jurisdiction under the Civil Procedure Rules as explained by Rix LJ at paragraph 39 of his Judgment[3] in Tibbles v SIG plc [2012] EWCA Civ 518, he divided matters into three; a material change in circumstances or a misstatement of the facts or some other rare or exceptional circumstance.

19. Both agreed that this difference between them might be nothing more than a matter of taxonomy and that it was academic from the point of view of the disposal of the instant appeal because they recognised and accepted that REJ Parkin had acted alighted on a material change of circumstance, namely the list of issues, and varied the order because of it. So, despite the broad and fluid sweep of the arguments as they had been deployed both at first instance and on the appeal up to that point I could decide the appeal on the basis as to whether REJ Parkin had alighted on what properly could be regarded as a material change of circumstance and then acted judicially by treating it as enabling him to interfere. For Mr Blackwood this was all a matter of the exercise of judicial discretion; for Mr Kibling identification of a material change in circumstance involved more than simply the exercise of discretion although if there was in substance a material change in circumstances then he accepted that issues as to whether or not a variation should have been made because of it would be matters for the exercise of judicial discretion.

How I should approach the Appeal?

20. There was, however, less unanimity as to how I should deal with the appeal. Mr Blackwood submitted the result of the discussion was that the only two points I need consider were whether REJ Parkin had acted irrationally in identifying the list of issues as a change of circumstances and, assuming that he had not, whether the factors that he relied upon in paragraph 5 of his Reasons were either irrational or Wednesbury unreasonable. The narrowness of this proposed scope of appellate inquiry stemmed from his analysis of paragraph 39 of the Judgment of Rix LJ in Tibbles, to which I will come in due course, but which, for present purposes, can be condensed into the proposition that the question of subsequent variation is essentially a matter of judicial discretion.

21. Mr Kibling, on the other hand, argued that whether or not there has been a material change in circumstances cannot be determined simply on the basis of the exercise of judicial discretion in the sense that, if REJ Parkin did think there was a material change in circumstances but I did not, the “litmus test” as to whether I could interfere was not confined simply to the useful summary articulated by the then President, Langstaff J, in the first two paragraphs of the Judgment of a division of this Tribunal in the case of Harris v Academies Enterprise Trust and others UKEAT/0097/14/KN and UKEAT/0102/14/KN which is as follows:

“1. The exercise of the power to strike out involves a discretion. Where an Employment Judge exercises a discretion a successful appeal against his Decision is likely to be rare. There is a wide ambit within which generous disagreement is possible in many matters of judgment, and this is undoubtedly the case in respect of the exercise of discretion[4]. As it was put in the case of Governing Body of St Albans Girls’ School and Anor v Neary [2010] ICR 473 by Smith LJ, there may be two correct answers or at least two answers that are not so incorrect that they can be impugned on appeal (see paragraph 49).

2. Appeals to this Tribunal lie only on a point of law. For the exercise of a discretion to be reversed it therefore has to be shown that the Judge was in error in his approach to that exercise. A discretion must be exercised judicially; that is, with due regard to reason, relevance, logic and fairness. It would usually be only if the Judge has misdirected himself on the law that he is to apply, plainly misapplied it, failed to take into account a factor that demonstrably he should have done, left out of account something he should not have, or reached a decision that is so outrageous in his defiance of logic that it can be described as perverse, that his decision may be overturned.”

Mr Kibling submitted that interference by a subsequent Judge with an order made by a previous Judge with an equivalent jurisdiction was to be carefully regulated by jurisprudence that depended not simply on the exercise of discretion but, first and foremost, on legal principle, which would make it a rare event. The underlying jurisprudence must be that of certainty and finality so far as judicial orders were concerned or, putting it in the way that Mr Blackwood put it in his submissions, jurisprudence that had proper regard to “the integrity of a judgment or order”. This seems to me a helpful expression and I gratefully adopt it with this qualification. Like Rix LJ in Tibbles I need not consider the position in relation to final Judgments; the problems facing me are quite complex enough without becoming trapped in the thickets of estoppel. Consequently I prefer to use the expression “the integrity of judicial orders and decisions” with the intention of addressing only the interim and the interlocutory as opposed to final Judgments. So, Mr Kibling submitted that before the Court or Tribunal reached the stage of considering the exercise of discretion, the prior question was whether, on an objective basis, there was “a material change in circumstances” or a “misstatement” and only when either was established would matters of discretion fall to be considered.

22. Mr Kibling also pointed out that whilst this may not differ greatly from what Mr Blackwood submitted was the correct approach, the fact that counsel had agreed would not preclude me from reaching my own conclusion. In any event whether or not I considered the difference between his position and that of Mr Blackwood to be determinative he submitted it would be very helpful to Employment Tribunals and practitioners for me to consider the authorities and set out my own views

23. Like most, if not all, Judges I am reluctant to go any further than might be necessary in order to decide this appeal and I find Mr Blackwood’s prospect of a simple resolution very tempting. But it does seem to me that Mr Kibling is correct to say that before I can approve either the extent of the agreement between counsel or the importance, if any, of the difference between them I need to form my own view as to where the law now stands. Consequently I propose to undertake a relatively brief excursion through the authorities.

The Fundamental Principle

24. Before doing so, however, I need to recognise that the topics of certainty and finality in litigation and of the integrity of judicial orders and decisions is both antique and far-reaching. Even in the relatively narrow statutory jurisdiction of the Employment Tribunal the topic covers all kinds of orders and directions; examples are to be found in the context of strike out, reconsideration (formerly review) and what is nowadays called “relief from sanction”, all of which might involve variation of previous directions and orders, as well as in cases, like the present, which might be described as “set-aside cases”, where the only issue is variation of a previous direction and order. Looking beyond this statutory jurisdiction lies the vast panorama of civil litigation generally, deriving originally not from statute but from the common law, although since the 19^th century regulated procedurally by Rules of Court and now regulated by the Civil Procedure Rules (“CPR”). Moreover some of the authorities have been devoted to the extent to which the procedure in the Employment Tribunal context is to be regarded as controlled by the procedure of the civil jurisdiction and authority on the principles regarded as underpinning it. It would be easy to get lost in this vast terrain and although I propose to start in the civil jurisdiction I intend to restrict my exploration to a relatively narrow compass.

The Procedure of the Civil Courts

25. The CPR largely replaced the Rules of the Supreme Court and the County Court Rules on 26 April 1999. It made many changes, foremost amongst which was the creation of “the overriding objective of enabling the court to deal with cases justly and at proportionate cost” (CPR Part 1.1). By and large, of course, civil litigation in England and Wales normally involves both the payment of court fees (subject to provisions relating to fees exemption) and the awarding of costs in favour of one party and against another. The CPR expressly articulates a power to vary or revoke orders at CPR Part 3.1(7) in these terms:

“(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

26. This has been considered by a number of authorities and the Court of Appeal has looked at it on many occasions but for present purposes it seems to me I need only consider three of them: Collier v Williams [2006] 1 WLR 1945, Tibbles (see above) and Thevarajah v Riordan and others [2014] EWCA Civ 14. Only the second was cited to me and I mention that, not as a criticism of counsel, but rather by way of apology to counsel, who have not had an opportunity to debate the significance of the other two. So far as Collier is concerned that seems to me of little significance because the case is discussed in Tibbles but the approach of the Court of Appeal in Thevarajah to one of the issues in that case does seem to me to have some significance for the outcome in this case and to that extent I propose to make judgment in this case provisional to the extent that if, having read it, either party wishes to make any submissions about what I say in relation to Thevarajah I will consider such submissions and reconsider this Judgment in the light of them. It almost goes without saying that will have to be done as a matter of extreme urgency.

27. The most economic way for to me to deal with these three cases is by citation from Thevarajah. The Judgment of the court was given by Richards LJ and he referred to and quoted from the two previous decisions of the Court of Appeal as follows at paragraphs 24 to 27:

“24. The conditions for varying or revoking an order pursuant to CPR 3.1(7) are set out in the cases of Collier v Williams and Tibbles v SIG Plc (“Tibbles”) to which the deputy judge referred. In Collier v Williams, at paras 39-40, the Court of Appeal endorsed the following approach adopted by Patten J in Lloyds Investment (Scandinavia) Ltd v Christen Ager-Hanssen [2003] EWHC 1740 (Ch):

“Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position.”

25. In Tibbles, at para 39, Rix LJ reached the following more elaborate conclusions after consideration of those and other authorities:

“(i) Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii) The cases all warn against an attempt at exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(iii) It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition.

…[5]

[(iv) Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.

(v) Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where a decision not to mention them is conscious or deliberate.]

(vi) Edwards v Golding is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order …

(vii) The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and misleading word: however, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.”

26. Rix LJ went on to consider the possibility that there might be other circumstances in which the rule could be invoked, for example that there might be room within it for a prompt recourse to the court to deal with a matter which ought to have been dealt within an order but which in genuine error was overlooked by the parties and the court. In that context he underlined the need for promptness, stating at para 42:

“The court would be unlikely to be prepared to assist an applicant once much time had gone by. With the passing of time is likely to come prejudice for a respondent who is entitled to go forward in reliance on the order that the court has made. Promptness in application is inherent in many of the rules of court: for instance in applying for an appeal, or in seeking relief against sanctions (see CPR 3.9(1)(b)) …” ”

28. Thevarajah is a relief from sanction case and to some extent is concerned with the sequential relationship between CPR Part 3.1(7) and CPR Part 3.9 (relief from sanction). Its focus was whether another Judgment of the Court of Appeal, Woodhouse v Consignia plc [2002] EWCA Civ 275, [2002] 1 WLR 2558, was authority for the proposition that a second application for relief from sanction was permissible without an application made under CPR Part 3.1(7) to set aside the previous refusal of relief. Ultimately the fundamental issue was whether the Judge at first instance was correct in identifying the fact that the giving of disclosure since relief from sanction had been refused amounted to a material change in circumstances. This is dealt with in the Judgment of Richards LJ as follows at paragraph 30 to 32:

“30. The reasoning in that passage[6] does not sit altogether comfortably with the policy of the April 2013 rule changes giving effect to the Jackson reforms, as underlined by the Mitchell judgment in relation to CPR 3.9 in particular. But in any event the court in Woodhouse was not addressing a situation where, as here, a “second bite at the cherry” under CPR 3.9 involves setting aside a previous order refusing relief from sanction. That presumably explains the absence of any reference to CPR 3.1(7) or to the criteria relevant to its application. We are satisfied that the judgment in Woodhouse is not to be read as displacing the normal operation of CPR 3.1(7) in a case involving CPR 3.9; and in so far as the deputy judge proceeded on the basis that the judgment in Woodhouse permitted the course adopted by him in the present case, he was wrong to do so. The respondents’ “second bite” application was in substance an application under CPR 3.1(7) for the setting aside of the provisions of Hildyard J’s order refusing relief under CPR 3.9, and as such it had first to satisfy the criteria in Tibbles.

31. The respondents’ application manifestly failed to satisfy those criteria. The only argument advanced in relation to them was and is that there had been a material change of circumstances since Hildyard J’s order was made, in that the respondents had now, as of 1 October 2013, given the full disclosure that the unless order required to be given by 1 July 2013. The deputy judge held at para 55 of his judgment (quoted at para 17 above) that “this compliance itself amounts to a material change of circumstances” since the date of Hildyard J’s order. Whether the respondents had in fact complied with the disclosure requirements in the unless order was a matter of dispute before us, but there is no need to examine that issue. Even if the required disclosure had been made at last, some three months after the date for compliance under the unless order itself and almost two months after the date of Hildyard J’s refusal of relief from sanction for non-compliance, it could not in our view amount to a material change of circumstances for the purposes of an application under CPR 3.1(7). It could not alter the fact of non-compliance with the unless order or amount to a good reason for that non-compliance, nor would it undermine the reasoning that led Hildyard J to refuse relief from sanction. There was nothing here by way of material change of circumstances, and there was no other basis for an application under CPR 3.1(7) to vary or revoke Hildyard J’s order.

32. In our judgment, therefore, the deputy judge ought to have rejected the respondents’ second application under CPR 3.9 on the threshold ground that no proper basis had been put forward for revisiting Hildyard J’s order refusing the first application for the same relief.”

29. It seems to me from the above that in Thevarajah there is no hint that the Court of Appeal was considering the issue as to whether or not there had been a material change of circumstances in terms of the exercise of judicial discretion. This is a matter to which I will need to return later but whatever the significance of paragraphs 31 and 32 of Thevarajah the other citations from it (paragraphs 24 to 26) seem to me to disclose sufficiently the current position in the civil jurisdiction and so I turn now to the jurisdiction of the Employment Tribunal.

The Procedure of the Employment Tribunal

30. Until very recently the commencement and conduct of proceedings in the Employment Tribunal did not involve the payment of fees but the position is now more or less equivalent to that in the civil courts; costs, however, are still only recoverable in limited circumstances. Under Rule 4(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 the power of the Employment Tribunal to give directions had been “to give such directions … as appear to the tribunal to be appropriate”. By Rule 10 of these Rules of Procedure there was introduced for the first time into the context of the Employment Tribunal the concept of an overriding objective; this was “to deal with cases justly”, although that included “saving expense”. Review was dealt with in Rule 13; one of the grounds for review was that “the interests of justice require such a review” (see Rule 13(e)).

31. The Rules were changed in 2004 and Rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which dealt with the overriding objective, contained more or less the same rubric as the previous Rules. Rule 10(1) allowed the Employment Judge (still then called the “chairman”) either to make orders prescribed in a list “or such other orders as he thinks fit” (by then the term “order” had been substituted for “direction”). Another difference between the Rules under the 2001 Regulations and the Rules under the 2004 Regulations was that the latter now contained in Rule 10(2)(n) an express provision allowing for the variation or revocation of an order. The review provisions were contained in Rule 34 and in Rule 34(3)(e) the interests of justice ground for review was repeated.

32. In the latest iteration of the Rules, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the overriding objective is to be found in Rule 2. The rubric is not much altered; “fairly” has been promoted from being one of the factors to be included in dealing with the case in accordance with the overriding objective to become a component of the objective itself - “to deal with cases fairly and justly” - and new concepts, which may be somewhat more than simply refinements of the previous text, have been introduced - “avoiding unnecessary formality and seeking flexibility in the proceedings” and “avoiding delay, so far as compatible with proper consideration of the issues”. Now Rule 29 of the 2013 Rules requires an Employment Judge to consider whether a variation is “necessary in the interests of justice”:

“29. Case management orders

The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. The particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.” (Emphasis added)

This is now aligned with the Rule relating to “reconsideration” (terminology which has replaced “review”) where the only basis for such reconsideration is “where it is necessary in the interests of justice” (see Rule 70).

33. These being the Rules of Procedure applicable over roughly the same period as the CPR has been in force, I need to consider the authorities decided in relation to them during that period. Referred to in a number of later cases is the Judgment of a division of this Tribunal presided over by Keene J in Maurice v Betterway UK Ltd [2001] ICR 14, which was a case about successive pre-hearing reviews; although there are earlier decisions it seems to me a good starting point. Keene J said this at paragraph 22 of the Judgment:

“… We are satisfied that the power to revisit a rule 7 issue is not a power to be used in order to have a second or third or further bite at the same cherry, when there has been no material change in facts or in the law, nor is it a procedure to be used to enable a party to go, as it were, chairman shopping, moving from one chairman to another until it can find a chairman who will come up with a decision in its favour.”

34. In Goldman Sachs Services Ltd v Montali [2002] ICR 1251, a case with a striking factual similarity to the instant appeal, a division of this Tribunal, presided over by His Honour Judge Clark, concluded that variation of a case management direction, whilst undoubtedly a decision involving the exercise of judicial discretion, should be subjected to consideration as to whether there could be said to have been “a material change in circumstances” since the order was made. In the course of the Judgment reference was made firstly to what were described as “the ordinary civil rules”, by which I would understand HHJ Clark to have meant firstly the position as it had been under the Rules of the Supreme Court (see paragraph 22) and secondly the CPR and to what was then, and still is, paragraph 6.4 of 29PD.6 (i.e. the Practice Direction to CPR Part 29, which deals with multi-track cases and makes explicit reference in that context to “a change in circumstances since the order was made” as the basis for permitting the court “to set aside or vary a direction it has given”) (see paragraphs 23 and 24). It is perhaps worth pausing at paragraph 24 and the citation from paragraph 22 of the Judgment of Laws LJ in the Court of Appeal case of Jameson v Lowis [2001] EWCA Civ 1264 where in the context of the procedures relating to appeals against interlocutory orders he referred to such procedures as not being “mere technicalities” and said:

“They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action was sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course, if there were a true change of circumstances then in my judgment the flexibility which the Civil Procedure Rules commend would plainly allow a change of view as to the procedural orders which should be made.”

35. After also taking into account the overriding objective at paragraph 25 HHJ Clark arrived at this conclusion at paragraph 26:

“26. That, it seems to us, is the clearest possible indication that when exercising any power under the Rules, as here, the employment tribunal will follow the same principles as those spelt out in the Civil Procedure Rules. In particular, in the present case, it will not reverse any earlier interlocutory order, which has dictated the parties’ preparation of their cases, in the absence of a material change in circumstances. …”

and then said this at paragraph 29 when dealing with the disposal of the appeal:

“29. Whether or not a preliminary hearing was desirable in this case is not a matter for us in this appeal. If litigants, and more particularly the employment tribunal itself, revisit procedural points already decided in the absence of the change of circumstances there will be uncertainty and repetition rather than clarity and finality within the processes of the tribunal litigation, to paraphrase Laws LJ in Jameson v Lovis.”

36. Onwuka v Spherion Technology UK Ltd [2005] ICR 567 is a Judgment of this Tribunal made in respect of the Rules contained in the 2004 Regulations. Unlike Goldman Sachs v Montali there is hardly any resemblance between Onwuka and the instant appeal. The case involves an application for an amendment of the claim which was refused and much of the appeal was about whether the discretion to allow or refuse that amendment had been properly exercised. A subsequent application to review that refusal was itself refused and some part of the appeal related to that and to whether the matter could be reconsidered. The real significance of the case for present purposes is that a division of this Tribunal presided over by Rimer J decided that under the Rules of Procedure contained in the 2004 Regulations although there was now a power to vary or revoke previous orders, “in the absence of any material change in circumstances” this Tribunal would not expect such a power to be utilised (see paragraph 35 of the Judgment).

37. This concept of a “material change in circumstances” was considered with approval as being “very important guidance, albeit that is not a limitation found in the Rules themselves” by another division of this Tribunal presided over by Elias J in Hart v English Heritage (Historic Buildings and the Monuments Commission for England) [2006] ICR 655 (see paragraphs 31 to 33 of the Judgment); Hart was an appeal about a series of refusals to review a previous decision.

38. In Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190, [2010] ICR 473 the Court of Appeal had to consider the argument that Employment Tribunals were obliged to consider relief from sanction in terms of the what can be called the “check list” provided by a set of considerations set out the then current iteration of CPR Part 3.9(1)[7] and whether it would be an error of law for them not to consider each and every one of the criteria as then set out in CPR Part 3.9. This proposition was rejected by the Court of Appeal in a comprehensive Judgment given by Smith LJ with the agreement (subject to a minor qualification of no importance for the instant appeal) of Sedley LJ in a brief Judgment and of Ward LJ, even more briefly expressed. Her reasoning is at paragraph 47 of her Judgment:

“I would accept Mr Green’s submission that it should be inferred that Parliament deliberately did not incorporate CPR r 3.9 (1) into employment tribunal practice when it chose to incorporate the overriding objective. There is, to my mind, an obvious reason why Parliament did not do so. It has always been the intention of Parliament that employment tribunal proceedings should be as short, simple and informal as possible. We all know that that intention has not been fulfilled and employment law and practice have become difficult and complex. But where Parliament has apparently decided not to incorporate into employment tribunal practice a set of requirements such as those in CPR r 3.9, I do not think it proper for the courts to incorporate them by judicial decision. It is one thing to say that the employment tribunals should apply the same general principles as are applied in the civil courts and quite another to say that they are obliged to follow the letter of the CPR in all respects. It is one thing to say that the employment tribunals might find a list of CPR r 3.9 (1) factors useful as a checklist and quite another to say that each factor must be explicitly considered in the employment judge’s reasons. I would overrule the line of Employment Appeal Tribunal authority which, in effect, requires consideration of all the CPR r 3.9 (1) factors on an application involving relief from a sanction in the employment tribunal.”

One of the questions which troubled me at the hearing of this appeal was whether that meant the status of Goldman Sachs v Montali was therefore questionable. It is one of the authorities referred to in paragraphs 35 to 46 of her Judgment but when I put the point to counsel they both suggested that the statement about overruling authorities in this Tribunal in the last sentence of paragraph 47 never included Goldman Sachs v Montali. Having reflected on the matter I now accept that they are quite correct.

39. Firstly, although Goldman Sachs v Montali is a case suggesting this Tribunal should follow the practice “spelt out” in the civil jurisdiction it has nothing to do with relief from sanction or the CPR Part 3.9 (1) “check list”, which is what Smith LJ refers to specifically. HHJ Clark was referring to paragraph 6.4 of 29PD.6, which is entirely different. Secondly, Goldman Sachs v Montali was decided before the first case referred to by Smith LJ as dealing with the CPR Part 3.9 “check list”, Maresca v Motor Insurance Repair Centre [2005] ICR 197. Thirdly, although possibly not compelling but, nevertheless, somewhat comforting, the editor of the Industrial Cases Report of Governing Body of St Albans Girls’ School v Neary refers in the headnote to only the first of a series of cases mentioned by Smith LJ as relating to the CPR Part 3.9 “check list”, Maresca v Motor Insurance Repair Centre [2005] ICR 197, as having been overruled. Whilst this might be thought unduly restrictive and incompatible with the expression “line of employment appeal tribunal authority” (an expression which naturally means more than one) it is difficult to see how Smith LJ can have intended that a case decided before any line of authority started and not dealing with that specific topic should be included.

40. Fourthly, although again, perhaps, not compelling (because Governing Body of St Albans Girls’ School v Neary appears not to have been cited and is certainly not referred to in the Judgment), Goldman Sachs v Montali was subsequently followed by a division of this Tribunal, comprising Mr Recorder Luba QC, in the case of Bonkay-Kamara v Apcoa Parking UK Ltd UKEAT/0577/12/RN and UKEAT/0431/13/RN (see paragraph 17 and 18 of the Judgment). Fifthly, in Harris, an appeal which concerned a strike out (citation above at paragraph 21 of this Judgment), whilst Langstaff J, in giving the Judgment of a division of this Tribunal, referred to Goldman Sachs v Montali as being “the start of a chain of cases relating to the approach in respect of giving relief from sanction that was considered by the Court of Appeal in Neary” (see paragraphs 28 and 29), he does so without suggesting that it has been overruled. If, on the contrary, paragraphs 28 and 29 of Harris should be read as impliedly stating that the latter has overruled the former, then with the greatest respect, I venture to suggest this goes too far. In support of that conclusion, I repeat that Goldman Sachs v Montali is not a case about relief from sanction. Moreover, whilst the suggestion made by HHJ Clark at paragraph 26 is one of following “the same principles as those spelt out in the Civil Procedure Rules” what is applied in that case, whilst it is “spelt out” in 29PD.6, is really not a CPR Rule but the much older universal principle of restricting challenges to the finality and certainty of orders and the integrity of judicial orders and decisions to specified circumstances (i.e. matters that the Court of Appeal have identified as lying beneath the surface of the CPR).

41. Sixthly, and allied to the last point, whilst, in the same way as Governing Body of St Albans Girls’ School v Neary rejected slavish adherence to the rubric of CPR Part 3.9, whereas Harris rejects the argument that the 2013 Rules of Procedure are coupled to the CPR to the extent relief from sanction in the context of the Employment Tribunal must be approached via the Court of Appeal’s decision in Mitchell v Newsgroup Newspapers Ltd [2013] EWCA Civil 1537, Langstaff J also recognised “there is much in principle that applies to both” (i.e. the CPR and the 2013 Rules of Procedure) even though the overriding objective contained in the latter is not the same as that in the CPR (see paragraphs 32 and 33 of the Judgment).

42. In the context of the Employment Tribunal there is one example in the authorities cited to me of misstatement or, perhaps more accurately, omission. This is the decision of a division of this Tribunal presided over by Underhill J, the then President, in Newcastle upon Tyne City Council v Marsden [2010] ICR 743. The misstatement/omission there was that counsel failed to tell the Employment Tribunal that he had advised the Claimant not to attend the hearing and failed to request that the proceedings be adjourned so as to enable him to do so. The claim having been dismissed in his absence the Claimant sought and was granted a review, the result of which was that the dismissal of his claim was revoked (see the discussion in paragraphs 15 to 19 of the Judgment). It was this revocation which was unsuccessfully appealed.

Discussion and Conclusion

43. In my judgment the following emerges from the above consideration of the Rules and authorities relating to the CPR and the Employment Tribunal Rules:

a. the draftsmen[8] of both sets of Rules must be taken to have drafted them with the same universal principle in mind, namely what I have described as finality and certainty of decision and orders and the integrity of judicial decisions and orders; this principle, as the authorities in both jurisdictions illustrate, usually directs any challenge to an order towards an appeal to a Tribunal of superior jurisdiction and discourages seeking the same Judge or another Judge of equivalent jurisdiction to look again at an order or decision, save in carefully defined circumstances;

b. although the only reference in either set of Rules to a “change in circumstances” is in a Practice Direction to the CPR and not in the CPR itself (and there is no explicit reference to a “material change in circumstances” in either) the principle, as it emerges from the authorities referred to above is that before a Judge can interfere with an earlier order made by a Judge of equivalent jurisdiction there must be either a material change of circumstances or a material omission or misstatement or some other substantial reason, which, taking account of the warning Rix LJ gives against attempting exhaustive definition, it is not possible to describe with greater precision;

c. when it comes to long standing procedural principles such as this, unless the rubric of the Rules clearly indicates the contrary, that principle should be taken to have been in the mind of the draftsmen when the Rules were drafted and the Rules must be interpreted so as to take account of such a principle;

d. the draftsmen of the current Employment Tribunal Rules have used the expression “necessary in the interests of justice”; in my judgment that should be interpreted through the prism of the principle I have just articulated; variation or revocation of an order or decision will be necessary in the interests of justice where there has been a material change of circumstances since the order was made or where the order has been based on either a misstatement (of fact and possibly, in very rare cases, of law, although that sound much more like the occasion for an appeal) or an omission to state relevant fact and, given that definitions cannot be exhaustive, there may be other occasions, although as Rix LJ put it these will be “rare … [and]... out of the ordinary”.

44. This leaves the critical issue, so far as this appeal is concerned, as to whether this is all a matter of the exercise of discretion. In Tibbles Rix LJ said in relation to the distinction between “jurisdiction” and “discretion” “there is in all probability no line to be drawn between the two”. This takes “discretion” a very long way but in my judgment it does not support Mr Blackwood’s submission that whether or not an order should be varied or reversed is all a matter of discretion and, therefore, no matter how much I might disagree with REJ Parkin, I can only ask whether his characterisation of the arrival of a substantial list of issues as a “material change in circumstances” was outside “a wide ambit within which generous disagreement is possible” or whether he had “reached a decision that is so outrageous in its defiance of logic that it can be described as perverse” (see paragraphs 1 and 2 of Harris). Rix LJ refers at paragraph 39(i) of Tibbles to “a principled curtailment of an otherwise apparently open discretion” and it seems to me that if the concept is not to become too elusive (I might say slippery) it requires a degree of fixity that makes the “curtailment” capable of objective assessment in objective terms.

45. As I observed above at paragraph 29 of this Judgment, paragraph 31 of the Judgment of the Court of Appeal in Thevarajah seems to me absolute in its analysis. I cannot detect in it anything of the scrutiny of an exercise of discretion as suggested by Langstaff J in paragraphs 1 and 2 of Harris. To my mind Richards LJ approached the suggested change in circumstances in Thevarajah objectively and absolutely and concluded that the subsequent disclosure could not be described as a material change in circumstances on any basis. He was definitely not asking whether such a conclusion was within the ambit in which reasonable disagreement is possible. I therefore incline to the view that whether or not a subsequent event amounts to a material change in circumstances is, as Rix LJ put it, a matter of “jurisdiction” and not a question of the exercise of discretion. In other words I would hold that whether or not there has been a change of circumstances and whether or not that change is material is a matter to be decided from an objective standpoint and by asking whether the circumstances changed and whether that matters not from the point of view of a band of reasonableness but from the point of view that either the factual matrix can support that view or it cannot.

46. In my judgment the list of issues cannot be regarded as a material change of circumstances. Indeed I cannot regard it as any real kind of change at all. It is true that it provides a more detailed analysis of the case but the case itself remains the same. To my mind the problem with the decision made by REJ Parkin is that having acknowledged, as he did at paragraph 2 of his Reasons, that EJ Coles “was fully aware of the claim of unfair dismissal for the inadmissible reason of making a protected disclosure”, he then proceeded on the basis that what had changed by the preparation of the list of issues was the perception of the case. But all of this presupposes that EJ Coles, who had made his decision after consideration of the extensive pleaded case, and not only in the knowledge of the interrelated issues but, as seems likely, because of them, had done so on a partial and inadequate awareness of the future complexity of the case. The danger of such an approach, to my mind, is that it involves deciding what EJ Coles “can have envisaged at his initial hearing”. Once a later Judge starts asking what an earlier Judgment had in mind that seems to me to reveal that the Court or Tribunal has started to tread where it should not.

47. I have no doubt whatsoever that REJ Parkin acted from the very best of motives and believed that the decision he was taking was necessary in the interests of justice in order to move the case onwards after the Judicial Mediation had been unsuccessful and eaten into the timetable. Moreover, I recognise that in deciding, as I do that there was no material change in the circumstances in this case, I am making a decision that disrupts the timetable. But I am not case managing the matter; I am considering an appeal against the order made by REJ Parkin and I have come to the conclusion that, however inconvenient it may be, REJ Parkin should not have interfered with the Coles Order. In my judgment, objectively viewed, there was not a proper basis for him to do so.

48. If, because this is not a matter of “jurisdiction” but is a matter of “discretion”, I am wrong as to that, I would still reach the same conclusion on the exercise of discretion and, essentially, for the same reasons. Even if this is a matter of discretion and I must approach it from the point of view as to whether such a conclusion was within the ambit in which reasonable disagreement is possible, then I regard it as not simply a matter of whether REJ Parkin and I disagree about the list of issues amounting to a material change in circumstances. In this case I would go so far as to say that in reaching such a conclusion REJ Parkin made an error of law because the list of issues is not a material change in circumstances and nobody can regard it as such. I repeat my view that the list of issues, distilled no doubt from the respective pleadings, makes no difference to the nature of the case. All that the list does is explain what has to be decided and it is not a material change. In my judgment that is not simply my view as opposed to the view expressed by REJ Parkin but it amounts to the only view which can be held in relation to whether the list of issues changes any of the circumstances of the case so as to permit revision or reconsideration of the Coles Order.

49. I accept that the other matters in paragraph 5 do represent the exercise of judicial discretion and I see no basis for suggesting that they lie outside the ambit within which reasonable disagreement is possible. They are all factors, it seems to me, which REJ Parkin was entitled to consider in deciding whether it was necessary in the interests of justice and consistent with the overriding objective to dispense with the Preliminary Hearing. In my judgment no error of law arises as a result of them. But there is an error of law in relation to material change of circumstances.

50. Accordingly, I will allow the appeal. The Coles Order must be restored and a separate Preliminary Hearing listed. I leave it to the good sense of the parties to decide how that might be accommodated. If that means that the hearing listed to start on 29 February 2016 cannot proceed I am very sorry for that but as I explained in the previous paragraph my function is to decide this appeal. If the parties can arrive at any alternative solution I will leave that for them to discuss with REJ Parkin.

51. If either party wishes to make any submissions in relation to the view that I have expressed as to the significance of paragraph 31 of the Judgment of the Court of Appeal in Thevarajah then such submissions will have to be made in writing and in early course. I will wait to hear from the parties on that matter.

[1] The Claim form and its appendices occupy pages 12 to 179 of the appeal bundle. Allowing for the fact that on some of those pages there is not much text, even by modern standards it is a considerable document.

[2] He had limited availability and there were difficulties with witnesses so the letter sought a hearing in a window covering May, June and July 2016. In the event (as a result of a most unhappy event that any not going into) the witness difficulties cease to apply and the case could be listed earlier; as I have already indicated, it is due to start at the end of February 2016.

[3] Although not expressly said to be so this is certainly the Judgment of the court on the matter at issue in the instant appeal - the very short observations of Lewison LJ on an additional point are made after stating his agreement with the Judgment of Rix LJ with which Etherton LJ also agreed.

[4] This must be derived from the words of Asquith LJ about the nature of an error of law in relation to the exercise of judicial discretion: “exceed the generous ambit within which reasonable disagreement is possible” at page 345 of his Judgment in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343; words, which were approved by the House of Lords in G v G [1985] 1 WLR 647 and subsequently referred to in the same context by Wall LJ in CIBC v Beck [2009] EWCA Civ 619.

[5] Sub paragraphs (iv) and (v) were omitted by Richards LJ from his citation of paragraph 39 of the Judgment of Rix LJ in Tibbles obviously because they were not relevant in Thevarajah but they are important to Mr Blackwood's argument and I have reinstated them.

[6] At paragraph 29, which it is not necessary for me to set out here, Richards LJ had quoted passages from the Judgment in Woodhouse.

[7] Since then that provision has been much simplified by what are universally known as the “Jackson Reforms”.

[8] The Interpretation Act applies - the male includes the female.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Serco Ltd v Wells (Practice and Procedure) [2016] UKEAT 0330_15_1301 (13 January 2016) URL: http://www.bailii.org/uk/cases/UKEAT/2016/0330_15_1301.html Cite as: [2016] UKEAT 330_15_1301, [2016] ICR 768, [2016] UKEAT 0330_15_1301

United Kingdom Employment Appeal Tribunal