Appeal No. EAT/849/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 July 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY

	(AS IN CHAMBERS)

NISSAN MOTOR MFG (UK) LTD	APPELLANTS

MR T I DIMES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J BOWERS
(OF COUNSEL)
Messrs Eversheds
Solicitors
Milburn House
Dean Street
Newcastle upon Tyne
NE1 1NP

For the Respondent	MRS D LOEBL
(OF COUNSEL)
Messrs Samuel Phillips 
  & Co
Solicitors
86 Pilgrim Street
Newcastle upon Tyne
NE1 6SR

		MR JUSTICE MUMMERY: (PRESIDENT)	This is an application for directions in relation to the hearing of a pending appeal.  It specifically relates a request by the Appellant for the production of Chairman's Notes of Evidence.  The proceedings were brought by Mr Dimes, a former employee of Nissan Motor Manufacturing (UK) Ltd, by an Originating Application presented on the 2 March 1993.  He claimed unfair dismissal.  He attached to his application an account of the facts relating to an incident which led to his dismissal.

	The proceedings were contested by Nissan.  Their case was that Mr Dimes was dismissed for violent behaviour towards another employee, Mr Armitage.  That was considered to be gross misconduct.  They alleged that a full investigation was carried out.  A Right of Appeal was taken up.  Mr Dimes admitted in the investigation that he had struck Mr Armitage first.  It was alleged that Mr Armitage's version of events was corroborated by a statement of an unnamed independent witness.  The case of Nissan was that he was fairly dismissed.

	The hearing took place before the Industrial Tribunal last July and August.  It went on over the 19, 20, 21, 23 July and 10 August.  Mr Dimes was represented by a Solicitor, Mr Gibson.  Nissan was represented by Counsel, Mr Cape.  Neither of those are representing the parties on this appeal.  For reasons notified to the parties on the 15 September 1993 the Tribunal unanimously decided that Mr Dimes was unfairly dismissed, but that he had contributed to his dismissal by blameworthy conduct to the extent of 50%.  It was a detailed decision running to 12 pages, 42 paragraphs, reviewing the evidence in detail.

	Nissan were dissatisfied with the decision.  Different Counsel was instructed.  A Notice of Appeal, almost as long as the decision, was put in on the 21 October 1993.  The Notice of Appeal takes a mixture of points; some relating to alleged misdirections by the Industrial Tribunal; others, including criticisms of the way in which they made their findings of fact.  It is alleged that some findings were inconsistent and other findings are not supported by evidence.

	An application was made by the Appellant for production of the Chairman's Notes of Evidence.  That was sought in the Notice of Appeal, (paragraph 6).  When the request was notified to the Chairman his immediate reaction was to wonder whether the Appellants could not be more selective in their request.  The Notice of Appeal made no attempt to limit the request.  The Chairman said that there were 230 pages to transcribe.  The effort would be a burden at a time when resources were fully stretched.  

	In the light of that the Employment Appeal Tribunal wrote to the Appellants' Solicitors asking whether the Notes of Evidence could be restricted in some way.  They were specifically asked to identify the issues on which they intended to use the notes.  There was then submitted with a letter of the 31 May, the Appellants' submissions in support of the application for notes.  It was submitted, (and these submissions have been repeated by Mr Bowers on behalf of the Appellants today), that Notes of Evidence ought only to be ordered where they are necessary for the proper presentation of the appeal.  He accepts that the proper question for the Industrial Tribunal was whether the employer at the time of the dismissal had reasonable grounds to believe in the alleged misconduct, not whether the employer had demonstrated at the time of the Tribunal hearing that he had evidence to that effect.

	The complaint voiced in the submissions with that letter and by Mr Bowers today is that on certain crucial parts of the case the Tribunal reached conclusions for which there was no evidence.  He says that it is impossible for him to advance those grounds of appeal unless he has the notes of evidence.  He would need the notes in order to demonstrate how crucial findings of fact by the Tribunal were not based on evidence adduced and that it was not open to the Industrial Tribunal to conclude, for example, that there was no enquiry into the build up and throwing of the punch and the degree of provocation in the incident which led to the dismissal.

	The Appellants' Solicitors were informed by letter of the 13 June that the request was still too wide.  It was not limited to the Notes of Evidence given by particular witnesses.  The identification by issues made it impossible to be certain as to what the scope of the request was, if it was for less than the full notes.  

	In those circumstances I directed that if the Appellants wanted to pursue the request for the notes, an oral hearing should take place and that an attempt should be made to identify the witnesses whose evidence was relevant to the appeal.  

	At the hearing this afternoon the matters were fully argued on each side.  Mr Bowers has refined his arguments by producing a document in which he identifies 7 issues on which the Chairman's Notes may assist on the hearing of the appeal.  He has reminded me that the principles governing the decision are conveniently summarised by Mr Justice Wood in his judgment in Houston v Lightwater Farms Ltd.  

	He summarised the relevant principles as follows: 1) An Appellant must satisfy the Appeal Tribunal that his application for Chairman's notes is based on reason. 2) The decision whether or not to request a Chairman to produce a copy of his notes was a matter for the decision of the Appeal Tribunal, not of anybody else.  3) In reaching that decision a balance should be maintained between the burden on the Chairman, the reasons put forward by the Appellant and the need to do justice between the parties.  4) If necessary, this Tribunal will order the production of notes.

	I have discussed with Counsel whether it would be possible to limit the notes requested in a number of ways.  One possible way would be by reference to the notes kept by the Chairman of the evidence of certain named witnesses.  Another is to ask the Chairman in more general terms simply to pick out for himself those parts of his notes which record evidence for the conclusions criticised in the Notice of Appeal.

	I have rejected both of those approaches as impracticable and potentially dangerous.  They might do the worst of all things; that is, give the Tribunal, which hears this appeal, a partial account of evidence when the Tribunal had the benefit of hearing of all the evidence given directly by the witnesses and seeing them challenged under cross-examination.  

	The choices seem to (1) to order all the notes today, or (2) to reject outright now the request for any of the notes, or (3) to adjourn this application to be dealt with by the Tribunal which hears the appeal.  I have no hesitation in declining to make an order now for the production of all the notes.  To order a Chairman to transcribe 230 pages of notes ranging across a number of issues is a great burden on him.  Having them dictated and transcribed imposes a great burden on the Respondent and his advisers and also on the Tribunal, which has to prepare the case papers for hearing.

	The whole exercise might, moreover, turn out to be completely unnecessary.  If Mr Bowers is right in those parts of his Notice of Appeal which allege misdirections by the Tribunal, he can succeed in his appeal without a single note.  The thousands of pounds which would be involved in the exercise of producing all the notes would have been totally wasted.

	I would be more inclined to make an order now refusing the notes.  But I hesitate for this reason.  The appeal notice and the document produced by Mr Bowers today attempt to be specific about certain areas on which notes may be necessary.  The full Tribunal, which hears the appeal, may decide to allow it on the grounds of misdirection.  If they do, there is no need for anybody to worry about notes.  If, however, they are inclined to dismiss the appeal on those grounds, finding that there are no misdirections by the Tribunal, the Tribunal may be concerned to know what was the basis of certain parts of the decision.  They would by then have examined it in detail.  

	It is important to keep the option open.  I will adjourn the hearing of this application to come on with the full appeal.  Mr Bowers can then, if he wishes at an appropriate stage, make his application.  He may not need to.  But, if he feels the need to, it cannot be said that I have shut him out from obtaining what the full Tribunal may consider necessary.  The full Tribunal will have the benefit of three minds which have gone into the details of the case far more that it has been appropriate for me to do on an interlocutory application for directions.

	Those are the reasons then why I adjourn this application to be dealt with by the full Tribunal.  If the Appellant wishes the Tribunal to deal with it, the Tribunal can make what order it thinks is appropriate.  That Tribunal will be in a better position than me to make an informed decision.