__________________________

Case No: A2/2010/0176

Neutral Citation Number: [2010] EWCA Civ 884

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HHJ MCMULLEN QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Thursday, 8 July 2010

Before:

LORD JUSTICE RICHARDS

• - - - - - - - - - - - - - - - - - - - -

Between:

WELLS (Applicant)

- and -

ST EDWARD'S RC PRIMARY SCHOOL (Respondent)

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

• - - - - - - - - - - - - - - - - - - - -

Mr Ivor Wells addressed the court on behalf of his wife, the Applicant.

The Respondent did not appear and was not represented.

• - - - - - - - - - - - - - - - - - - - -

Judgment

(As Approved by the Court)

Crown Copyright

Lord Justice Richards:

1. The applicant, Mrs Wells, was a midday supervisor at the respondent school until her dismissal in 2006. She claimed unfair dismissal and sex discrimination. Her claim was dismissed by an employment tribunal on 12 September 2007 pursuant to Rule 27 after a hearing which neither she nor her husband (who has represented her throughout) attended. Mr Wells tells me today that neither of them knew of the date of the hearing.

1. Mrs Wells applied for a review of the decision to dismiss. In a fully reasoned judgment dated 15 October 2008, a tribunal held that the application for review was itself out of time and found that it was not just and equitable to allow a review to be made out of time. In the alternative, having considered the material that was put forward as explaining Mrs Wells's previous non-attendance, the tribunal held that there were no grounds for a review in any event and that the application for a review should be dismissed. The effect of all of that was that the original tribunal dismissal of the claim was left in place.

1. Mrs Wells appealed the review decision to the Employment Appeal Tribunal. On sifting Silber J concluded that the appeal had no reasonable prospect of success. There was then a Rule 3 hearing before His Honour Judge Reid QC on 3 June 2009, but he then adjourned the case. The adjourned hearing came on before His Honour Judge McMullen QC on 12 August 2009. The judge treated it as a full hearing under Rule 3. He dismissed the appeal. As an inevitable concomitant of that, he refused an application to adduce fresh evidence and an application for disclosure.

1. The matter now before the court is an application for permission to appeal against the decision of Judge McMullen. There is a linked application for permission to extend time for appealing and there is an application for an order for disclosure from the respondent and the employment tribunal.

1. I should briefly indicate the nature of the concerns expressed by Mr Wells on his wife's behalf - concerns that were placed before Judge McMullen, as they have been before this court, in extensive written submissions, underlined today by brief and properly focused oral submissions by Mr Wells. In essence, there are allegations of fraud, perjury, corruption, and fabrication directed both at the solicitors who acted for Mrs Wells at the time of the original tribunal hearing, by the name of NK Legal, and, more importantly, at the Tribunal Service itself. It is submitted that comparison of documents both internally and by reference to matters such as transmission receipts show that there has been falsification of material. This is relied on really as going to the heart of the case and as providing a basis for an appeal, and it is sought to have further disclosure with a view to making good these various allegations.

1. In the decision under challenge, Judge McMullen endeavoured to clarify the procedural history, which was of some complexity. He held, first, that there was no basis for challenging the tribunal's findings on review, that the application for review had been out of time and that in any event there was no adequate explanation for the non-attendance which had led to the initial dismissal of the claim. He said that the fresh evidence sought to be relied upon before him failed to satisfy any of the three limbs in the case of Ladd v Marshall. It could have been produced before the review hearing, it appeared to be incredible and it would not have had any effect upon the review judgment. Indeed, he went on to say that none of the allegations of fraud, fabrication and so forth had any relevance to the single issue, whether the tribunal should have dismissed the appellant's claim. Accordingly, he dismissed the appeal and the application for fresh evidence.

1. As I have said, Mrs Wells seeks to appeal to this court. She has to establish that there was an arguable error of law on the part of Judge McMullen, that is to say that she would have a realistic prospect of persuading the court that there was an error of law in his decision.

1. But even prior to that, she has the problem that the Appellant's Notice to this court was not filed in time (it appeared to me from the papers provided for the hearing that the date of filing was 19 November 2009, but even if that is wrong it has not been shown to my satisfaction that the Notice was filed within the period laid down in CPR 52.4(2)). No satisfactory explanation of the delay was given in the notice itself or in the accompanying written material and I have to say that no satisfactory explanation has been given to me by Mr Wells today. He has referred to the recent discovery of further relevant information concerning NK Legal, but that does not begin to provide a satisfactory explanation for the delay.

1. An extension of time is needed for this application to succeed. Mummery LJ on the papers refused an extension. I agree with him. I am satisfied that there is no proper basis for an extension and that an extension, therefore, should be refused. That means the application to this court fails at the threshold.

1. I should go on, however, to make clear that permission to appeal would have been refused even if an extension of time had been granted. The grounds of appeal are not easy to distil from the written material. Mr Wells today has been helpfully more focused, as I have already indicated. The submissions amount to an assertion that there was an error by Judge McMullen, in violation of Article 6, in refusing to allow further evidence and in not ordering the disclosure that was sought. The order for disclosure was and is seemingly sought on the basis that Mrs Wells's rights under Article 6 will be infringed if she is not able to obtain evidence to substantiate her allegations.

1. In my judgment, and in complete agreement with Mummery LJ, the appellant has failed to identify any arguable error of law. In particular, there is no arguable breach of Article 6. It is clear from Judge McMullen's judgment that the employment tribunal and then the Employment Appeal Tribunal adopted a flexible procedural approach operating in favour of Mrs Wells. On the review decision, the tribunal considered the material before it, despite finding that the application was out of time. Judge McMullen heard the application for fresh evidence despite the fact that the Rule 3 setting meant that the respondent was not represented. He bent over backwards to understand and consider the case being put forward. In my judgment, he was fully entitled to find that the conditions for receiving fresh evidence were not satisfied. Even if some of the material in question only came into the possession of Mrs Wells after the review decision, that does not affect the ultimate position, because the judge was entitled to find that the material would have made no difference to the result given the nature of the tribunal's reasoning.

1. Whatever the source of Mrs Wells's belief that there has been fraudulent conduct and fabrication of documents and a deep-rooted conspiracy against her, there is nothing in this application that in my judgment justifies the intervention of the court.

1. Accordingly, as I have said, even if I had granted permission for an extension of time, I would have refused the application for permission to appeal. I would go further than Mummery LJ. In my judgment this application is totally without merit.

Order: Application refused