Amendment; claim forms; adding or substituting respondents; the Cocking test. The National Industrial Relations Court (Sir John Donaldson) laid down the procedure for deciding whether to allow an amendment that changes the basis of a claim or adds or substitutes a respondent: the tribunal must have regard to all the circumstances, in particular any injustice or hardship that would result from allowing or refusing the amendment [IDS 9.22]. The test was restated in Selkent Bus Co Ltd v Moore and applied by the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly, which held that Parliament laid down no time limit for amending a claim already presented [IDS 9.65]. An application to add or substitute a respondent relates back to the date of the original claim [IDS 9.63]. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; amendments; established the test for allowing amendments: nature of amendment, time limits, timing/manner. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Evidence; 'without prejudice'; existence of a dispute; grievance. The EAT (Cox J) held that an employee's formal grievance did not bring a later meeting within the without prejudice rule. Called to a meeting on her return from maternity leave, opened as 'without prejudice' and said to be independent of the grievance, the claimant was told her job was no longer viable and offered a settlement dressed as redundancy. The meeting was not a genuine attempt to settle the grievance, and no dispute about termination existed, so she could rely on it in her sex discrimination claim [IDS 15.88]. Barnetson v Framlington Group Ltd, which finds a dispute once the parties contemplate or could reasonably contemplate litigation, is reconciled on the footing that the rule protects only communications aimed at settling the particular dispute that has been raised [IDS 15.90]. The exception for perjury, blackmail or other unambiguous impropriety derives from Unilever plc v Procter & Gamble Co, not from this case. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Appeal; new points on appeal. HHJ McMullen QC collected the circumstances in which the EAT will entertain a point not taken below, among them a discrete point of pure law requiring no further factual enquiry, and excluding cases where what is required is an evaluation and assessment of the material by the specialist first-instance tribunal. On the facts the EAT allowed a jurisdictional point conceded before the tribunal to be reopened, these being four test cases standing for some 120 similar concessions. Applied in Russell Cherrington v University of Derby, where leave was refused because the Art. 10 point required factual investigation and evaluation the tribunal had never undertaken. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Tribunal procedure; specific disclosure; relevance and necessity. Specific disclosure in the employment tribunal requires more than relevance: disclosure must be necessary for fairly disposing of the proceedings. A focused request directed at a pleaded issue and supported by some credible evidence is not a fishing expedition, and neither confidentiality nor volume is of itself an answer to a properly targeted application.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Tribunal procedure; Convention rights raised for the first time on appeal. HHJ Peter Clark gave the parks police constables and their union permission to amend, so as to argue for the first time on appeal that s.200 ERA 1996 and s.280 TULRCA 1992 had to be read compatibly with EU law and the Convention. At the full hearing Slade J rejected those arguments and allowed Wandsworth's appeal. Treated in Russell Cherrington v University of Derby as confined to points of pure law: a Convention argument attracts no special indulgence, and the EU law principle that a national court must consider Community law points not raised by the parties does not extend to the Convention. [Summary not yet checked against the judgment.]
Procedure; undefended claims; rule 21 ET Rules 2013. An employment judge gave judgment on an employer's contract claim because the claimant had entered no response, without hearing evidence [12]. HHJ Auerbach held that rule 21 neither requires nor permits judgment simply because a claim is undefended: the judge must be satisfied, treating what the claiming party says as undisputed, that the factual elements necessary to make good the claim in law are made out; otherwise there must be a hearing [26]. The same applies where the case reaches a full hearing with no rule 21(2) decision [31]. A request to participate under rule 21(3) must be given substantive consideration and decided judicially [40]. It was wrong to give no consideration to whether there was a proper basis for judgment [43]. It was a further error not to consider whether the claimant should be allowed to participate [46]. The whole judgment was quashed and both claims remitted [56].
Tribunal procedure; disclosure; case management powers. Orders for disclosure against a party to the proceedings are made under the tribunal's general case management power (now rule 30 of the ET Procedure Rules 2024), which is not territorially limited: a party outside Great Britain can be ordered to give disclosure. The rule empowering the tribunal to order 'any person in Great Britain' to disclose documents (now rule 33) governs disclosure against non-parties only.
Practice and procedure; costs; panel composition. Both appeals were dismissed [94]. Hearing the respondent's costs application at the end of the liability hearing was within the tribunal's case management discretion: an earlier direction that the hearing would determine liability did not preclude it, and the course was not barred by rule 77 and was envisaged by the Presidential Guidance [84]. The claimant had been forewarned by four costs letters and a deposit order [87]. There need not be a precise causal link between unreasonable conduct and the costs claimed, but an award must be compensatory, not punitive [89]. Under rule 39(5) the claim need only fail for substantially the reasons in the deposit order [91]. On the wasted costs application the judge did not err in sitting alone: it was made before the three-member panel was seized and concerned conduct pre-dating the hearing, so no jurisdictional bar arose [76]. Delay in deciding it raised no question of law [70].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; anonymity; Tribunal was wrong to refuse Rule 50 order without allowing claimant time to obtain medical evidence.
“In many cases it will be a proper exercise of judicial discretion to conclude that the medical material available does not demonstrate the clear and cogent evidence needed to establish a departure from the open justice principle. Sometimes a judge may even properly conclude that obtaining medical evidence would be futile. There are many cases where anonymity applications are made with no supporting evidence and they are properly refused.”Judge Barry Clarke, at [37]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; AI and citation of authorities. The Divisional Court held that freely available generative AI tools are fundamentally unreliable for legal research as they can produce plausible but entirely fabricated citations ('hallucinations'). Lawyers bear a professional duty to verify all AI-generated output through authoritative sources (BAILII, National Archives, official law reports) before use. Those in leadership positions must implement practical measures ensuring compliance with AI-related professional obligations.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; AI and citation of authorities. Applying the Divisional Court guidance in Ayinde, HHJ Charman found that a solicitor's firm had submitted two fictitious AI-generated case citations. The firm's administrative staff had used a legal software's built-in AI research feature without verification. The judge held the conduct was improper, unreasonable and negligent, ordered wasted costs against the firm, and struck out the claim with indemnity costs. [Summary not yet checked against the judgment.]
Practice; EAT appeals; time limits. The Court of Appeal reaffirmed the strict approach to the 42-day time limit for EAT appeals. Where judgment and written reasons are in the same document, failure to lodge the judgment with the notice of appeal is not a 'minor error' under rule 37(5). Extension requires substantial compliance with rule 3(1) within the time limit, lodging nothing and providing explanations later is insufficient.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.