Such v Transport & General Workers Union

On an application to adjourn an appeal, the court must balance the need to give the appellant a fair opportunity to present the case against the public and private interest in avoiding further delay. An adjournment may be justified where newly instructed counsel has had insufficient time to understand a lengthy case, obtain proper instructions and prepare submissions, particularly where the respondent will suffer no prejudice because it has chosen not to participate. The court may impose terms to limit delay and ensure effective preparation.

The appellant had brought claims of unjustifiable discipline, sex discrimination, victimisation and breach of contract before an Employment Tribunal. The Employment Appeal Tribunal dismissed her appeal, finding no identifiable error of law, and she sought permission to appeal and an extension of time.

At the Court of Appeal, newly instructed counsel sought a further six-week adjournment because of the length of the case, limited preparation time, difficulties obtaining instructions and the appellant’s health. The respondent union had stated that it would take no further part in the proceedings. The issue was whether the applications should be allowed and on what terms.

The Court of Appeal, in a unanimous judgment delivered by Lord Justice Mummery, allowed the applications and adjourned the appeal for six weeks. The adjournment was granted on terms requiring counsel to lodge a settled skeleton argument within four weeks.

1. Balancing justice and delay. Appeals from the Employment Appeal Tribunal were intended to reach the Court of Appeal within a year. The decision under appeal was already several years old, the case had previously been adjourned, and the court was therefore reluctant to cause further delay.
2. Fair presentation of the appeal. The court nevertheless considered it in the interests of justice to allow the adjournment. Counsel had been instructed only shortly before the hearing, had limited time to review a substantial evidential record, had been unable to confer properly with the appellant because of her health, and could not otherwise give the court the assistance available from fully instructed counsel.
3. Absence of prejudice. The respondent union had expressly declined to take further action despite knowing that the application would be heard by a full court. In those circumstances, the adjournment could not prejudice it.
4. Case-management terms. The skeleton argument was directed to focus on the alleged exclusion of relevant evidence by the Employment Tribunal. It was to identify the excluded material, explain how it was excluded, link it to the issues, and show why it could have affected the outcome.

• Employment Appeal Tribunal: Morison J, the then President, dismissed the appellant’s appeal from the Employment Tribunal, holding that no error of law could be identified in the tribunal’s decision.
• Court of Appeal (Civil Division): Allowed the applications and adjourned the appeal for six weeks, subject to the filing of counsel’s settled skeleton argument within four weeks.