APPEAL

Khudados v Leggate and others

EAT: Judge Serota QC, Mr A E R Manners and Mr S M Springer: 16 February 2005

The claimant brought claims for sex and race discrimination and victimisation against her employer and the surgeons responsible for her training. After a hearing lasting over 20 days, the employment tribunal found that the claimant had not been subjected to less favourably treatment and , by a decision promulgated on 9 October 2003, dismissed her claims. The claimant presented a notice of appeal on 20 November 2003 and directions were made for a preliminary hearing and service of submissions and affidavits. On 13 January 2004 the claimant's solicitors informed the Employment Appeal Tribunal of their intention to submit amendments of the notice of appeal within four weeks. On 6 February 2004 the preliminary hearing was fixed for 20 April 2004, and the registrar drew the solicitors' attention to paragraph 2(6) of Practice Direction (Employment Appeal Tribunal: Procedure) 2002, which required amendments to a notice of appeal to be made pursuant to an order on an interim application made as soon as a need for amendment was known. On 1 April 2004, after the respondents had lodged their affidavits and the chairman of the employment tribunal had responded to the claimant's affidavit, the claimant submitted an amended notice of appeal containing, inter alia, 26 pages of new allegations of perversity and extensive reference to additional documents. The delay was stated to be due to the complexity of the amendments and counsel's availability. On 20 April the preliminary hearing was adjourned and directions were given in relation to the application to amend the notice of appeal.

The Employment Appeal Tribunal held:
When considering an application to amend a notice of appeal, the starting point was the overriding objective, in rule 2A of the Employment Appeal Tribunal Rules 1993, to deal with cases justly. In doing so, it was relevant to take into account (i) whether the applicant was in breach of the Rules or the Practice Direction, and compliance with the requirement in paragraph 2(6) of Practice Direction (Employment Appeal Tribunal: Procedure) 2002, for an application to amend to be made as soon as the need for an amendment was known, was of considerable importance, (ii) the extent to which the proposed amendment would cause delay, (iii) whether allowing the amendment would cause prejudice to the other party and refusing it would cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal, (iv) in some cases, whether the amendments raised a point of law which gave the appeal a reasonable prospect of success at a full hearing, and (v) the public interest in ensuring that business in the Employment Appeal Tribunal was conducted expeditiously and its resources were used efficiently. Applying those principles, given that the applicant was in breach of paragraph 2(6) of the 2002 Practice Direction in that she did not make her application as soon as the need for amendment was known, that the delay in making the application was excessive and without adequate explanation, and that the tribunal was satisfied that the respondents would suffer prejudice, permission to amend would be refused.

Permission to amend the notice of appeal refused.

Appearances: John Hendy QC (Richard Price & Co, Sheffield) for the claimant; Carolyn D'Souza (Solicitor, Department of Health) for the sixth, seventh and eighth respondents; the first to the fifth respondents did not appear and were not represented.