Appeal No.  EAT/1371/99 
	EAT/945/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 February 2001

Before
 THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
(AS IN CHAMBERS)

EAT/1371/99
MSF	APPELLANT

(1) REFUGE ASSURANCE PLC 
(2) UNITED FRIENDLY INSURANCE	RESPONDENTS
______________________________________________________________________________
EAT/945/00
MSF	APPELLANT

ROYAL & SUN ALLIANCE INSURANCE GROUP			      RESPONDENTS

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS
Revised

	APPEARANCES

EAT/1371/99
For the Appellant

For the Respondents

EAT/945/00
For the Appellant

	
MR S GORTON 
(of Counsel)
Instructed by:
Thompsons
Solicitors
Richmond House
Rumford Place
Liverpool L3 9SW

MR N UNDERHILL QC
(of Counsel)
Instructed by:
Simmons & Simmons
Solicitors
21 Wilson Street
London EC2M 2TX

MR S GORTON 
(of Counsel)
Instructed by:
Thompsons
Solicitors
Richmond House
Rumford Place
Liverpool L3 9SW

For the Respondents	
MR J BURKE QC
(of Counsel)
Instructed by:
A J Hows & Associates
Solicitors
81 New Road
Harlington
Hayes
Middx UB3 5BG	

MR JUSTICE LINDSAY (PRESIDENT)

1	These are two appeals, on this occasion for directions only.  In each case the Appellant is MSF and in one case the Respondents are the Refuge Assurance PLC and the United Friendly Insurance PLC and in the other the Respondent is Royal & Sun Alliance Insurance Group.

2	Taking the Royal & Sun Alliance Insurance Group case first, and calling it “RSA”, in that matter the IT1 was launched by MSF on 18 March 1998 at Liverpool, under the guidance of, as solicitors, Messrs Thompsons.  The hearing was spread over many months; the case having begun in February 1999, the decision was sent to the parties on 20 June 2000.  In that case MSF was presented by Mr Hand QC and Mr Gorton; Mr Gorton appears for MSF in this matter today.  In that matter RSA was represented by Mr Burke QC and he has appeared before me today.  The Notice of Appeal in that matter was of 25 July of last year.  

3	In the Refuge and UFI case, to call it that, the IT1 was issued, again by MSF, again in Liverpool and again with solicitors, Messrs Thompsons, on 30 March 1998.  The hearing there was on 10 May 1999, and the decision sent to the parties on 20 September 1999.  

4	The common factor, on the face of things, was that MSF was again represented by Mr Hand QC, albeit not with Mr Gorton, but with Mr Woolfenden as Junior.  In that matter the Respondents were represented by Mr Underhill QC, who also appears before me today. 

5	The directions which are sought by MSF are that the two appeals should come on together, alternatively, consecutively.  The case for them coming on consecutively is acknowledged by Mr Gorton as being weak, and, I think I can effectively lay that on one side and overlook it.  Both RSA and MSF, by their respective leading Counsel, oppose the cases coming on together.  There is no doubt but that the Employment Appeal Tribunal has got power to require cases to be conjoined, although strangely, there is, as it seems to me, no equivalent in the Employment Appeal Tribunal of the Rule 18 which allows matters to be combined at the Employment Tribunal level.  Perhaps that is an indication of the contemplated rarity of appeals being knocked together, but it matters not; they plainly can be, if an appropriate case is made for it.  

6	One of the strange features of this case is that one might have thought the cases, had they been considered to be appropriate to be run together, would have been run together from the start, given that the same solicitors were acting for both, both cases being presented initially in Liverpool.  That leads to an argument by Mr Burke that either it was not seen that the cases were sufficiently similar, when they were launched, for them to run together or that a choice was made that, notwithstanding their similarities, they should not be run together.  It is a mystery that Mr Gorton is unable to clarify, but it does, as it seems to me, present a factor against their joinder now.  

7	More importantly there is a point as to costs.  If the cases are taken together, it seems inevitable that it will be more costly for the Respondents, because the Respondents will be likely to have to incur another two days or so of representation that would not have been incumbent upon each respectively, had the cases been kept separate.  The estimate varies rather from party to party, but it seems to me realistic to regard each appeal as needing to take two days, and, if they run together, each Respondent will be incurring two days’ more costs than they would otherwise need to incur; that seems to me an important and practical factor against the cases running together.  

8	Another important factor is that it is common ground between Mr Burke and Mr Underhill that the Refuge case is much more, so to speak, law-led, and the RSA case much more fact-led than the other, and I have been taken, particularly by Mr Burke, in relation to the Notice of Appeal by MSF in the RSA case, into identifying a number of areas of the Notice of Appeal that would seem to be issues of fact, specifically arising only in the RSA case.  

9	There is no doubt that there are some points of law that will need to be ventilated in both but it seems to me that there is a great body of fact which is not common to the pair of the cases, and again, that seems to me to be a feature which tends to lead to the cases not coming on together.  Mr Gorton mentions the possibility of inconsistency between the decisions in the two cases, if they are kept separate.  But it seems to me that that should be relatively easy to arrange against by each case being reserved to the President of the day, and leaving only the chance that the President changes in the meantime, and in any event, as Mr Burke points out, it is quite plain that the decision in the first would be referred to in the second if they were kept separate.  

10	Mr Underhill has addressed me on the particular areas of law that are likely to arise under section 188, and particularly, sub-sections 1 and the relatively new 1(a) and 7, and I do see it to be the case that there is more likely to be more law, so to speak, in the Refuge case than in the RSA case.  

11	All in all, it seems to me appropriate that the cases should be kept apart.  It is agreed that if that is the case, the Refuge case should be taken first, and, accordingly, the direction I give is that the two cases should not be joined together, but the Refuge case should be heard first; that each case should be heard by the President of the day and that there should be a gap between the judgment in the first and the beginning of the appeal in the second of at least three weeks, in order that the parties involved in the second appeal should reflect on, and perhaps take the benefit of, the judgment in the first, because it seems to me there is a not improbable prospect that the second appeal would either be abandoned altogether, or certainly shortened, depending on the issues and the way they were resolved in the first one.  

12	There is a point as to Chairman’s Notes in the RSA case only, and, as I understand it, Mr Gorton and Mr Burke are agreed that the Chairman’s Notes can be limited to the evidence of Mr McKeown, Mr Pennington and Mr Evans.  I will ask Counsel to confirm that at the end, but that seems to me to be appropriate.  There has been no application for Chairman’s Notes in Refuge and, again, I will come back to Mr Underhill on that, but subject to clarification of those points, I will make the directions as to keeping the cases separate, as I have indicated.  
[After further discussion with Counsel]

13	A request is to go from the EAT to the Chairman who heard the RSA case for his notes of the witnesses: Mr Statham, Mr Pennington, Mr Evans and Mr McKeown, but that request is not to issue from the EAT earlier than 14 days after the judgment is given in the first appeal; and the gap between the hearing of the second appeal and the judgment in the first is to be not less than one calendar month, the object of the exercise being that the parties will have time to reflect on the judgment, but without delaying the second case overlong.